(dissenting): I dissent from Syllabus ¶ 1 and the related portions of the court’s opinion overruling 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 the subsequent decisions of this court adhering thereto.
The rule in Mooneyham was announced by this court on March 7, 1964, subsequently certiorari was denied by the United States Supreme Court. (Mooneyham v. Kansas, 377 U. S. 958, 12 L. Ed. 2d 502, 84 S. Ct. 1640.) The rule was reviewed by the Tenth Circuit Court of Appeals in Mooneyham v. State of Kansas, 339 F. 2d 209 and found not to be in violation of the fundamental rights guaranteed by the Constitution of the United States (p. 210). The rule has now become a settled and integral part of the system of criminal appellate review and the limitations and conditions inherent therein provided for by statute and case law in this jurisdiction.
Our legislature gave a defendant the right to appeal from any judgment against him in K. S. A. 62-1701. In the probation and parole act (K. S. A. 62-2226 to 62-2255, inch) the legislature provided procedure by which probation and parole could be granted to “persons convicted of crime” (62-2226, supra) or a person “found guilty of a crime” (622239, supra). It appears to me that 62-1701, supra, was intended as a means for finally adjudicating the guilt or innocence of a defendant while K. S. A. 62-2239, et seq., was intended to provide for the constructive rehabilitation of a person finally convicted of a crime. There is no legislative directive in K. S. A. 62-2226, et seq., that recourse thereunder should not be deemed inconsistent with taking an appeal under 62-1701, supra. Some states have so provided, 4 Am. Jur. 2d., Appeal and Error, § 275, p. 768.
In Mooneyham this court found that the voluntary seeking of probation under K. S. A. 62-2226, et seq., was inconsistent with an intention to take an appeal under 62-1701, supra, and therefore constituted a recognition of the validity of the judgment and acquiescence therein on the part of a convicted criminal. In the absence of any legislative declaration to the contrary, in the enactment of K. S. A. 62-2226, in 1957, or subsequent to the announce*288ment of the Mooneyham rule by this court, it is my view the rule should be adhered to.
Since a state is not required by the Federal Constitution to provide appellate review at all (Griffin v. Illinois, 351 U. S. 12, 100 L. Ed. 891, 76 S. Ct. 585, 55 A. L. R. 2d 1055, reh. den. 351 U. S. 958, 100 L. Ed. 1480, 76 S. Ct. 844) or if such is provided it may be done on such terms as a state may deem appropriate (Mooneyham v. State of Kansas, supra; Griffin v. Illinois, supra; and McKane v. Durston, 153 U. S. 684, 38 L. Ed. 867, 14 S. Ct. 913) I cannot find the rule to be objectionable either as a matter of principle or law. Therefore I would dismiss the appeal.
Fatzer, J., joins in the foregoing dissent.