dissenting: This is the first opportunity I have had to register my opposition to the rule enunciated in State v. Mooneyham, 192 Kan. 620, 390 P. 2d 215, cert. den. 377 U. S. 958, 12 L. Ed. 2d 502, 84 S. Ct. 1640, and adhered to in numerous, subsequent cases cited in the majority opinion.
*11The right to appeal in a criminal case is a statutory right granted by the state through the legislature (State v. Coletti, 102 Kan. 523, 170 Pac. 995) and is not a right guaranteed by the federal constitution (Mooneyham v. State of Kansas, 339 F. 2d 209). The legislature, by K. S. A. 62-1701, has provided a defendant in a criminal case the right to appeal to the supreme court as a matter of right from any judgment against him. In my opinion, the rule in Mooneyham constitutes an unwarranted deprivation of that right by seizing upon and liberally applying the rule of acquiescence which has consistently been applied in civil cases.
The rule is well stated in In re Estate of Hill, 179 Kan. 536, 297 P. 2d 151:
“In this state it is an established rule of law that a party who voluntarily acquiesces in, ratifies or recognizes the validity of a judgment, order or decree against him, or otherwise takes a position which is inconsistent with the right to appeal therefrom, thereby impliedly waives or is estopped to assert his right to have such judgment, order or decree reviewed by an appellate court. In other words, anything that savors of acquiescence in a judgment cuts off the right of appellate review.” (Syl. ¶ 1.)
These same elements are recognized in the Mooneyham opinion and form the basis of the decision rendered therein.
The statutory right of appeal in a criminal case is of such fundamental importance that the cotut should be extremely cautious in finding a waiver thereof as a mere matter of inference. (4 Am. Jur. 2d, Appeal and Error, § 270; 24 C. J. S., Criminal Law, § 1668.)
In State v. Harmon (Mo.), 243 S. W. 2d 326, it was stated that an appellate court should not find that a defendant in a criminal case has waived his right or is estopped unless the record, the acts of the defendant, and all of the circumstances are inconsistent with any other interpretation. It was further observed that while an appellate court should be slow to find a waiver of the right of appeal as a matter of inference, it should do so without hesitation if the intention to waive was clear.
I cannot fathom that a request for freedom in the nature of an application for probation or for suspension of the execution of sentence (K. S. A. 62-2239) amounts to a voluntary acquiescence, ratification or recognition of the validity of the judgment of conviction. True, a defendant applying for probation recognizes a judgment, but to say he acknowledges its validity belies man’s innate desire for freedom, even under supervision and regulation. It is equally difficult to rationalize that such a request is inconsistent with an intention to take an appeal. The seeking of probation is *12merely the exercise of another of a defendant’s statutory rights. Under the rule of the majority, the mere request that probation be granted under K. S. A. 62-2239 forecloses the right to appeal under K. S. A. 62-1724. I believe appeal rights should not be abrogated under such circumstances.
An examination of the cases cited and relied on in Mooneyham reveals that in nearly every instance there was the payment of fine or costs by a convicted defendant who later attempted to appeal. Additional facts were present in State v. Morse, 191 Kan. 328, 380 P. 2d 310. There the defendant entered a plea of guilty, was sentenced to seven days in jail and assessed fines and costs. He began serving his sentence. Three days later he was granted, and accepted, a parole, and paid his fines and costs.
Each of the cited cases, therefore, is factually distinguishable from the facts of Mooneyham as well as those of the instant case. The acts of the defendants were such that there was at least a partial or full compliance with the judgment. In other words, the defendants yielded obedience, to some extent at least, to the judgment. As an additional factor, in State v. Morse, supra, the defendant began serving his sentence and later accepted the benefits of a parole. There seems little doubt, and there appears to be considerable authority supporting the proposition, that a request for, and an acceptance of, probation will constitute a waiver of the defendant’s right to appeal. (24 C. J. S., Criminal Law, § 1668.)
It could logically be argued that a defendant who contemplates appealing his conviction acquiesces in the judgment by going on to prison instead of seeking a stay of execution and remaining free while his appeal is pending. Yet K. S. A. 62-1724 (a) provides in such case he may appeal at any time within six months from the date of sentence. Under the Mooneyham rule, however, a defendant under similar circumstances who requests probation is deprived of his right of appeal. In my opinion, there is as much acquiescence in the one instance as the other, except for the element of voluntariness. The right to appeal is preserved by statute on the one hand, and by judicial rule is withheld on the other.
I believe a defendant’s statutory right to appeal should not be denied simply because he applied for probation. The appeal in the instant case should be considered on the merits. I therefore respectfully dissent.
Price, J., joins in the foregoing dissent.