¶1Opinion by
¶2This case grows out of the same state of facts that exists in the preceding case of The Alliance Trust Company v. Smith, just decided. A complaint, verified by one James T. Goodwin, who describes himself therein as the tenant in possession of the land, recites that on the 20th day of June, 1891, there was growing on said land a certain crop of wheat, to wit, about 90 acres, and that on said day Milton Smith, Benjamin Smith, and Henry Drain, having no interest in the same, did then and there unlawfully cut down said wheat. These defendants were arrested, tried before a justice of the peace, convicted, and fined $5 each, and adjudged to pay the costs of prosecution. They appealed to the district court, and filed a plea in bar to the prosecution of the action against them, reciting all the facts respecting the lease to Milton Smith and the planting of the crop, and the dates of the foreclosure, judgment, sale, and execution of the sheriff’s deed. This plea in bar (the facts stated therein being admitted) was *360sustained, and the defendants were discharged. The state excepted, and reserved the question for the decision of this court.
¶3We are powerless in this case, and can afford the state no relief. There was a virtual trial, and the defendants were discharged. From the case of The State v. Carmichael, 3 Kas. 102, to that of The State v. Moon, 45 id. 145, including the cases cited in the latter opinion, we have universally held that when the defendants are acquitted we cannot disturb the judgment. The defendants in this case stated their defense in the nature of a plea in bar, and the facts were admitted by the state. On this statement they were discharged by the district court. This is an acquittal, and no appeal by the state can be had therefrom.
¶4We recommend that the judgment be affirmed.
¶5By the Court: It is so ordered.