Opinion
No. 9057.
Decided May 3, 1951.
Criminal law — Order not appealable. Order dismissing complaint in misdemeanor prosecution was not an appealable order.
Appeal from the District Court of Yellowstone County; B.E. Berg, Judge.
Mr. Arnold H. Olsen, Atty. Gen., Mr. Leif Erickson, Sp. Asst. Atty. Gen., for appellant.
Mr. Franklin A. Lamb, Mr. Dale F. Galles, Billings, for respondent.
On motion to dismiss appeal. Respondent was convicted in the justice court of Billings Township on a complaint charging him with having committed a misdemeanor by engaging in the business of photography without obtaining a license as prescribed by Chapter 37, Laws of 1937. Respondent appealed to the district court of Yellowstone county wherein he filed a demurrer to the justice court complaint. The district court sustained respondent's demurrer and ordered the complaint dismissed. From the order of dismissal the state appealed to this court. Thereupon respondent served and filed a motion to dismiss the appeal urging that the order of dismissal is not an appealable order. Upon being served with respondent's motion the state filed herein its written consent to dismissal of the appeal, conceding that the authorities cited in respondent's memorandum brief in support of his motion are controlling. The district court's order of dismissal does not fall within any of the provisions of R.C.M. 1947, section 94-8104 and therefore is not an appealable order. It therefore follows that this court is without jurisdiction to hear and determine the appeal. Accordingly respondent's motion to dismiss is granted and the appeal is dismissed. See State v. Wright, 91 Mont. 427, 8 P.2d 646; State v. McCluskey 125 Mont. 20, 229 P.2d 169, 5 St. Rep. 164; State v. O'Brien, 20 Mont. 191, 50 P. 412. State v. Peck, 83 Mont. 327, 271 P. 707.