State v. Hickerson, 41244
| Decision Date | 11 April 1959 |
| Docket Number | No. 41244,41244 |
| Citation | 184 Kan. 483,337 P.2d 706 |
| Parties | STATE of Kansas, Appellee, v. Allan HICKERSON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In a criminal action, an appeal does not lie from an order sustaining a demurrer to a plea of former jeopardy and an order overruling a plea in abatement until after trial and final judgment on the information.
Elmer Hoge, Overland Park, for appellant.
Herbert W. Walton, Asst. County Atty., Olathe, and John Anderson, Jr., Atty. Gen., Robert Hoffman, Asst. Atty. Gen., and John J. Gardner, County Atty., Olathe, on the brief for appellee.
The appellant was charged in the magistrate court of Johnson county with molesting a minor child. After a trial and conviction appellant appealed to the district court. After the case reached the district court, the state filed a new information changing the alleged date of the crime. Thereupon, appellant filed a plea of former jeopardy and a plea in abatement. At a hearing before the district court, the court sustained a demurrer to the plea of former jeopardy and also entered an order overruling the plea in abatement.
Appellant has appealed from those orders of the district court assigning error therein.
At the outset, we are faced with a question not raised and briefed by the parties. It is clear that the statutes pertaining to criminal procedure and to appeal in criminal cases only provide for an appeal by a defendant in a criminal case after a final judgment therein. Section 62-1701 of G.S.1949 reads as follows:
'An appeal to the supreme court may be taken by the defendant as a matter of right from any judgment against him; and upon the appeal any decision of the court or intermediate order made in the progress of the case may be reviewed.'
In State v. Brown, 144 Kan. 573, 61 P.2d 901, the syllabus reads:
'In a criminal action an appeal does not lie from an order sustaining a demurrer to a plea in abatement until after trial and final judgment on the information.'
In the opinion, after stating the law of the above syllabus, the court continued:
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Berkowitz, Application of
...of a claim of double jeopardy could not be separately appealed under Kansas statutes and Kansas case law, including State v. Hickerson, 184 Kan. 483, 337 P.2d 706 (1959) and State v. Wallace,172 Kan. 734, 243 P.2d 216 (1952). Appellate review is available only after trial and conviction, on......
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State v. McGaugh
...K.S.A. 2017 Supp. 22-3602(a). No appeal may be taken by a defendant in a criminal case until judgment is final. State v. Hickerson , 184 Kan. 483, 484, 337 P.2d 706 (1959). "Judgment" in a criminal case is final only after conviction and sentencing. State v. Hall , 298 Kan. 978, 986, 319 P.......
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Rhodes v. De Haan, 41227
... ... Thereupon defendants filed separate demurrers to this pleading on the ground it did not state a cause of action. These demurrers were sustained and plaintiff was again given time in which to ... ...
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State v. Fisher
...any decision of the district court or intermediate order made in the progress of the case may be reviewed . . .." In State v. Hickerson, 184 Kan. 483, 337 P.2d 706 (1959), the court noted what is now K.S.A. 1977 Supp. 22-3602(a), supra, and ". . . It is clear that the statutes pertaining to......