Opinion
No. 42,065
Opinion filed December 10, 1960.
OPINION ON APPELLANT'S MOTION TO DISMISS
Appeal from Wyandotte district court, division No. 1; O.Q. CLAFLIN, III, judge. Opinion filed December 10, 1960. Motion denied.
Kenneth Ray argued the motion and was on the briefs for the appellant.
Robert J. Foster, county attorney, argued the motion, and John Anderson, Jr., attorney general, and Robert Hoffman, assistant attorney general, were with him on the briefs for the appellee.
This is a capital case in which the death sentence has been stayed by this court during defendant's appeal to the court. Appellant has now filed a motion to dismiss his appeal. In a similar situation, this court speaking through Mr. Chief Justice Harvey, said in State v. Miller, 165 Kan. 228, at 238, 194 P.2d 498:
"Prior to that time appellant's counsel filed a motion to dismiss the appeal. This motion was denied, for, as we interpret our statute (G.S. 1935, 62-2414), when a case of this kind has been appealed and the execution of appellant has been stayed pending the appeal, the judgment of the trial court should be affirmed or reversed. If affirmed this court must appoint a day certain and order the execution of the sentence of the trial court. If the judgment of the trial court is reversed this court would order a new trial, or that the defendant be discharged."
We think that G.S. 1949, 62-2414, applies to all capital cases where the death sentence has been imposed and the trial court's judgment is still in force.
The motion to dismiss is denied upon the above authority.