(concurring specially): I concur in the judgment, not because I think defendant was in jeopardy in the district court at the time the appealed case was dismissed, for, indeed, I think he was not, and for this reason: In The State v. Durein, 65 Kan. 700, 70 Pac. 601, it was held that Durein, who had first been convicted before a justice of the peace and had appealed, could not be tried in the district court because the justice had failed to certify the complaint. This court said:
“Until a certified complaint exists, there is not, in legal contemplation, any complaint at all, and certain it is that no part of the trial of a criminal case can be had until there is a written charge against the defendant to which he can be called on to respond.” (p. 702.)
Accepting that doctrine as settled (although I would not give it my independent approval), I insist on its obvious corollary and consequences, to wit, since there was in the district court, in legal contemplation, no complaint at all, the defendant was not in jeopardy. What was he in jeopardy of? What possibility of mischance could befall him? What was his peril? Peril of conviction! *266Of what? Nothing; no charge against him; nothing on which sentence could have been pronounced. (The State v. Hutzel, 108 Kan. 456, 195 Pac. 887.) But the judgment of the district court has to be affirmed, in my opinion, because the defendant has once been prosecuted on this charge. He cannot be prosecuted again in a new and wholly independent action, on a new and wholly independent information, charging him with the identical offense for which he has already been convicted. The original proceeding should never have been abandoned. Defendant was in jeopardy in the first action— in the justice court, not in the district court. I wish to add, however, that I am not at all sure that anything has yet transpired to prevent the sheriff from making a belated execution of the original commitment issued by the justice of the peace pursuant to defendant’s conviction in the justice court. (See The State, ex rel., v. Piper, 103 Kan. 794, 176 Pac. 626.)