(dissenting): I dissent from the fourth paragraph of the syllabus and the corresponding portion of the opinion. Briefly, my views may be stated as follows: The third syllabus of this opinion states the correct rule. It is as follows:
"An accused is in jeopardy, as that word is used in section 10- of the bill of rights of the constitution, when he is placed on trial in a court of competent *631jurisdiction by a duly impaneled jury upon a legally sufficient information on which he has been duly arraigned and to which he has pleaded.”
Since we all concede the above to be the rule, let us see of what petitioner was in jeopardy. It is conceded that he was in jeopardy for any crime of which he could have been convicted under the information. What was that? It was any act of rape committed with relation to the female in question any time within two years. Such acts are the basis for the charges upon which the state seeks to try petitioner. The fact that the state elected to rely for conviction on an act performed on a certain date can make no difference. Petitioner was in jeopardy when the jury was sworn to try the case. His status as to subsequent prosecutions was fixed then, not at some later time in the trial. It is to be presumed that if a verdict of not guilty of the offense charged in the present information is returned, and there is some evidence introduced as to an act of rape committed on a day different than the one charged, another information will be filed and so on until prosecution becomes persecution. With the announcing of this decision prosecutors will be quick to file charges on only a part of the state’s case. Then if a verdict of not guilty is returned another information will be filed and trial had. Thus, both the letter and the spirit of the constitutional inhibition against double jeopardy will be violated. The idea of the provision in the constitution was to avoid such action as we have in this case. In my opinion the guaranties of personal rights in the constitution should not be lightly snatched away from the citizen to gratify the relentless lust for blood on the part of a prosecutor.
I cannot agree with the attempted distinction of the case of State v. Rush, 138 Kan. 465, 26 P. 2d 581, and in my opinion that decision sustains my views.