
    State v. Stanley Brooks.
    [59 South. 860.]
    Criminal Law. Right of appeal l>y state. Code 1906, section 40.
    From the action of the court instructing a verdict for the defendant in a criminal case because the evidence did not support the charge, no appeal lies. In such case Code 1906, section 40, authorizing the state to appeal from a judgment acquitting accused when a question of law has been decided adversely to the state has no application.
    Appeal from the circuit court of Holmes county.
    Hon. Monroe McClurg, Judge.
    Stanley Brooks was acquitted on a trial for crime and the state appeals.
    The facts are fully stated in the opinion of the court.
    
      Frank Johnston, assistant attorney-general, for the state. •
    
      Hill SMcBee, for appellee.
    No brief of counsel on either side found in the record.
   Cook, J.,

delivered the opinion of the court..

This is an appeal by the state from the action of the circuit court in instructing the jury to find the defendant not guilty.

When the state closed its evidence, the court excluded the testimony, upon the motion of defendant, and directed the jury to acquit the defendant. “No question of law is presented by this record, but a decision of the court merely passing upon the sufficiency of the proof to sustain a conviction. In such state of case there is no warrant of law for the taking of an appeal by the state.” This is the language of Judge Truly, speaking for the court, in the case of State v. Willingham et al., 86 Miss. 203, 38 South. 334. The statute construed in that case was section 39, Code 1892. Section 40, Code 1906, under which this appeal is prosecuted, is a transcript of the law of 1892.

Experimental appeals by the state are not authorized by the statute, and this court is not required to read the evidence taken in the trial court to ascertain whether, taken as a whole, the jury would have been warranted in finding the defendant guilty. This would be'a waste of the court’s time, which could be more profitably employed in the investigation of real lawsuits.

The following appeals are. in the same category, viz.: State v. R. C. Wilkerson, 59 South. 830; State v. J. J. Olive, 59 South. 830.

Wherefore the appeals of all are dismissed.

Appeal dismissed.  