
    State of Kansas, Appellant, vs. P. R. King, Appellee.
    Where notice of appeal to the supi'eme court iras served on the clerk of the district court, but none was sowed on the defendant, held that the appellate court had no jurisdiction to review the judgment and decision of the court below. Ruling in Carr vs, The State, to the same purport, confirmed and , applied to this case.
    Such notice, and evidence of its service, should appear in the transcript; the court cannot assume its existence, nor render judgment without jurisdiction appears to be conferred by the record.
    The facts of the case appear in the opinion of the court.
    
      W. W. Gfuthrie, Attorney General, for the State.
    The first decision of the court below, excepted to, is that of entertaining “amotion to quash,” after “plea of not guilty,” entered by defendant upon his arraignment.
    In respect to the order of arraignment and trial, the criminal code has not materially changed the common law practice.
    The practice has been long well settled that a motion to quash cannot be countenanced after a plea of not guilty. (See vol. 1, p. 102, Code of 1853 of Arch. Or. Pr. and PI., and eases cited,.)
    
    The reason given that in such case the party will he left to his “motion in arrest,” rather than permitted to take advantage of “ motion to quash,” since the allowance of the first motion will not discharge from custody or bail, while the allowance of the latter motion would so discharge, seems sufficient to support the position taken.
    Upon the second exception, after examination of the indictment, I am unable to see grounds to supjmrt the objections raised.
    No counsel for appellee.
   By tlie Court,

Bailey, J.

At the February term of the district court for the county of Atchison for the year 1862, an indictment was found against King by the grand jury for said county, containing three counts, for official misconduct in the office of treasurer of said county of Atchison.

At the September term of the court for said county the defendant was arraigned upon said indictment and plead “not guilty,” and thereupon the cause was continued until the February term of said court, 1863, at which latter term the defendant, by his counsel, filed a motion to quash the indictment.

First. Because the first count does not charge a public offense.

Second. Because the second count is not certain, and docs not sufficiently charge said offense.

Uppn consideration of this motion, the court sustained it and ordered the indictment to be quashed, vacated and held for naught, and the defendant was discharged.

Upon the motion to quash, the district attorney objected that the motion came too late after a plea of not guilty entered, and the court having overruled the objection, files a transcript of the record as for an appeal, on behalf of the state, against said ruling.

Upon examination of the record filed, it appears that due notice of the appeal was given to, and accepted by, the clerk of the court, but it does not appear that any notice whatever was given to the defendant King. In the case of Carr vs. The State, decided at the last January term of this court, it was held by Cobb, C. J., that the service of the notice of appeal on the clerk and appellee or district attorney constitutes the appeal, and upon that alone the jurisdiction of this court, to review the judgments and decisions of' the court below, rests.

• It is, therefore, an important part of the record, and it should appear in the transcript filed, that this court may see, and the record may show, that it has jurisdiction of the cause.

The court cannot assume the existence of a portion of the record, not before it, nor render a judgment which, upon the face of its own record, would appear to bo without jurisdiction.

For these reasons, which we deem satisfactory and conclusive, the proceedings in this case must be dismissed at the cost of the attempted appellant.

All the Justices concurring.  