
    The State v. Hamilton.
    Criminal Law. — Appeal on Question of Law Reserved. — An appeal to the Supreme Court, in a criminal prosecution, upon a question of law reserved by the prosecuting attorney, can not be taken by the State where the defendant has been convicted.
    From the Allen Criminal Circuit Court.
    
      S. M. Hench, Prosecuting Attorney, and T. W. Woollen, Attorney General, for the State.
    
      W. G. Colerick and J. Q. Stratton, for appellee.
   Niblack, J.

This was a criminal prosecution upon an indictment for rape. There was a trial by a jury ; a verdiet of guilty, fixing the defendant’s punishment at two years in the state-prison; and judgment in accordance with the verdict.

The prosecuting attorney reserved a question of law upon the admission of some evidence offered by the defendant upon the trial, and has appealed to this court, assigning error upon the admission of such evidence.

By section 119 of the criminal code, 2 R. S. 1876, p. 405, it is provided, that “ The prosecuting attorney may except to any opinion of the court during the prosecution of the cause, and reserve the point of law for the decision of the Supreme Court. ****** In case of the acquittal of the defendant, the prosecuting attorney may take the reserved case to the Supreme Court upon an appeal at any time within one year.” But this court is not authorized to reverse the judgment of acquittal on such an appeal, but only to pronounce an opinion upon the decision of the court below upon the question thus reserved, which opinion shall be a uniform rule of decision and binding upon the inferior courts.

Section 150 of the criminal code, 2 R. S. 1876, p. 411, provides, that “Appeals to the Supreme Court may be taken by the State in the following cases, and no others :

First Upon a judgment for the defendant, on quashing or setting aside an information or indictment;

Second. Upon an order of the court, arresting the judgment;

Third. Upon a question reserved by the State.”

Taking both these sections of the criminal code together, it will be seen, that, while an appeal may be taken by the State in certain cases, upon a question reserved by the prosecuting attorney during the prosecution of a cause, yet that such appeal can only be taken where the defendant has been acquitted.

In this case, the defendant having been convicted, no> appeal is allowed by law, and tbe appeal will, in consequence, have to be dismissed.

Tbe appeal is dismissed accordingly.  