John G. Hardenburgh was prosecuted in the district court of Cloud county upon an informa-tion charging embezzlement. A jury was impaneled and the state’s evidence introduced. Then the defendant’s attorney filed what was called a demurrer to the evidence — in effect a motion for a peremptory instruction to acquit. The court refused to direct a verdict, but dismissed the jury and discharged the defendant from custody upon the ground that although the evidence was otherwise sufficient to support the information it did not show that the offense charged had been committed in Cloud county.
The state appeals, and asks a decision of the question whether under the evidence the action was brought in the proper county. No determination of this question can be made' here, for this court has nothing upon which to act. The discharge of the jury under the circumstances was of course equivalent to a verdict of not guilty, and exempted fihe defendant from any further prosecution in the same case or upon the same charge. Therefore no real controversy remains to be decided. Any opinions expressed on the subject would be voluntary and futile. Under the authority of The State v. Lee, 49 Kan. 570, 31 Pac. 147, and the cases there cited, the appeal must be dismissed.