delivered the opinion óf the court.
Thе plaintiff in error, Charles-R, Heike, Was indicted-with others on January 10, 1910, for alleged, violations'of the customs laws of .the United States in connection, with: the fraudulent importation of sugar, and also for conspiracy under § 5440 of the Revised Statutes of the United States to defraud the United States of its revenues. Heike appeared and filed a. special plea in bar- claiming" immunity from prosecution under the act of February 25, 1903, c. 755, 32 Stat. 904, as amended June 30, 1906, c. 3920, 34 Stat. 798. .The plea set up in substance that Heike had been called -upon to *427 testify before the grand jury in matters concerning the prosecution against him, and had thereby become immune from prosecution under the law. The Government filed a replication, taking issue-upon the matters set up in the plea. The issues thus raised were brought to trial before a jury in the Circuit Court of the United Stаtes for th'e Southern District of New York, and at the conclusion of the testimony the Government and the defendant each moved for direction of a verdict, and the court thereupon instructed the jury to find the issues joined in favor of the Government. Upon application by Heikе he was granted the privilege of pleading over, and he thereupon entered a plea of not guilty, and the case, was set for trial on March 1, 1910.
No judgment having been entered in the case mandamus proceedings were brought in this court, and in pursuance of its order a judgment nunc pro tunc was entered ■ as of February 14, 1910, as follows: “Judgment be and is hereby entered for the United States upon the verdict with leave to the defendant to plead over.” .
On February 25.1910, a writ of error was allowed to the Circuit Court from this court by one of its justices. The Government then moved, February 28, 1910, to vacate the order allowing the writ. That motion was overruled, March 14, 1910, and the Government made the present motion to dismiss the writ of erroi, upon the ground that the judgment entered as of February 14,1910, is not a final judgment within the meaning of the Court of Appeals Act.
The motion to dismiss brings to the attention of the court the important question of practice as to whether, after a judgment has been entered upon a verdict setting up the plea of immunity under the act of February 25, 1903, as amended June 30, 1906, finding the issues against the defendant, with leave given to plead over, and а plea of not guilty entered, on which no trial has been had, such judgment is, or is not, a final judgmentreviewableby writ of error *428 from this court where a constitutional question is involved, under § 5 of the act of March 3, 1891, c. 517, 26 Stat. 826.
The appellate jurisdiction in the Federal system of procedure is рurely statutory.
American Construction Co.
v.
Jacksonville, Tampa & Key West Ry. Co.,
In the case at bar it is the сontention of the plaintiff in error that he was deprived of the constitutional right of trial by jury in the direction by the court that the jury find a verdict against him upon his plea in bar. The question then is, Is the judgment entered nunc pro tunc as of February 14,1910, a reviewable one under the statute? That judgment in effect denied thе validity of the plea in bar, and left the defendant to plead over,, which he did. putting in,issue the averments of the indictment.
The construction of § 5.of the Court of Appeals Act was before this court in the case of
McLish
v.
Roff,
“From the very foundation of our judicial system the ob *429 ject and policy of the acts of Congress in relation to appeals and writs of error . . . have been to save the expense and delays of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it decided in a single appeal.”
McLish
v.
Roff, supra,
has been followed and approved in this court.
American Construction Co.
v.
Jacksonville, Tampa & Key West Ry.,
It may, therefore, be regarded as the settled practice of this court that a case cannot be brought' here by piecemeal, and is only to be reviewed here after final judgment by direct appeal or writ of error in a limited class of cases under § 5 of the Court of Appeals Act.
It is unnеcessary to enter upon a full consideration of what Constitutes a final judgment, a subject of much discussion. The definition of a final judgment or decree was tersely stated by Mr. Chief Justice Waite in
St. Louis, Iron Mountain & S. R. R. Co.
v.
Express Co.,
If we apply the definition herein contained of a final judgment or decree it appears cеrtain that the judgment of respondeat ouster, leaving the case with issue, joined upon the plea of not guilty, does not dispose of . the whole matter litigated in this proceeding, leaving nothing to be done except the ministerial act of executing the judgment. The thing litigated in this case is the right to convict the accused of the crime charged in the indictment. Certainly that issue has not been disposed of, much less has a final order been made concerning it, leaving nothing but an execution of it yet undone. The defendant was indicted for the crime alleged, and being apprehended he had a right to raise an issue of law upon the indictment by demurrer, to plead in bar, or to plead the general *430 issue. He chose to plead in bar immunity from prosecution by reason of the statute referred to. That issue was, by direction of the court, whether properly or improperly, held against him and the verdict of the jury and the judgment of respondeat ouster duly entered. At the common law upon the failure of such plea in:a case of misdemeanor it was usual at once to sentence the defendant as upon conviction of guilt of the offense charged. In cases of felony it was usual to permit a plea of not guilty after judgment' over. In the case at bar the record shows after the return of the verdict the plaintiff in error’s counsel asked to be permitted to plead, and was allowed that privilege. As the case now stands, upon the plea of not guilty, upon which the issue raised must be tried to a jury, certainly the whole matter has not been disposed of. It may be that upon trial the defendant will be acquitted on the merits. It may happen that for some reason the trial will never take place. In éither of these events there can be no conclusive judgment against the defendant in the case. It is true that in a certain sense an order concerning a controlling question of law made in a case is, as to that question, final. Many interlocutory rulings and orders effectually dispose of some matters in controversy, but that is not the test of finality for the purposes of appeal or writ of error. The purpose of the statute is to give a review in one proceeding after final judgment of'matters in controversy in any given case. Any contrary construсtion of the Court of Appeals Act may involve the necessity of examining successive appeals or writs' of error iri the same case, instead of awaiting, as has been the practice since the beginning of the Government, for one review after a final judgment, dispоsing of all controversies in that case between the parties.
But it is urged by the learned counsel for' the plaintiff in error, that this judgment must be held to be final for the purpose of review, otherwise the Government cannot keep the contract of immunity which it has made with the acсused, by virtue of the terms-of the immunity statute, which provides:
*431 “Nd person shall be' prosecuted or be .subjected to any-penalty or forfeiture.for or on account of any transaction, ' matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding,, suit, or prosecution under said acts [Sherman anti-trust and interstate commerce acts]. . . ■
By the amendatory act- of June 30, 1906/ c. 3920, 34 Stat. 798, it was provided that the above immunity shall extend only to a natural person who, in obedience, to'a subpoеna, gives testimony under oath or produces evidence, documentary or otherwise, under oath.
In view of the provisions' of this act it is argued that the complete-immunity promised is not given'Unless the person entitled to the benefits of the act is-saved from prosecution, for, it is contended, that if the act is to be effective .it means not only immunity from punishment, but from prosecution as well. It is admitted in the brief of the learned, counsel for the plaintiff in error that- prosecution must necessarily proceed so far .as an indictment and apprehension аre concerned, but when the plea of immunity under this act is entered, if well taken, the prosecution must be ended, as the statutes provide that no person shall be prosecuted, etc. • But we are of opiniop that the statute does not intend to secure to a pеrson making such a plea immunity from prosecution, but to provide hirh with a shield against successful prosecution, available to him', as a defense, and that when this defense is improperly overruled it may be a basis for the reversal of a final judgment against him. ■ Such promise o'f immunity has not сhanged the Federal system of appellate procedure, which is not affected ' by the immunity statute, nor does the immunity operate to give a right of review upon any other than final judgments.
■ A question very analogous to the one before us was made and decided in the case of
Brown
v.
Walker,
“The same answer may be made to the suggestion that the witness is imperfectly protected by. reason of the fact that he may still be prosecuted and put to the annoyance and expense of pleading.his immunity by way of confession and avoidance. This is a detriment which the law does not recognize. There is a possibility that any citizen, however innocent, may be subjected to a.civil or criminal prosecution and put to the expense of defending himself, but unless such prosecution be malicious he is remediless, except so far as a recovery of costs may partially indemnify him.”
The'Constitution of the United States provides that no person shall be twice placed in jeopardy of life and limb for the same offense, yet the overruling of a plea of former.conviction or acquittal has never been held, so far as we know, to give a right of review before final judgment. ,In the case of
Rankin
v.
The State,
“It.is a rule in criminal law in favorem vitae, in capital cases, that when a special plea in bar is found against- the prisoner, either upon issue tried by a jury or upon a point of law. decided by the court, he shall riot be concluded or convicted thereon, but shall have judgment of respondeat ouster-, and may plead over to the felony the general issue, 'not guilty.’ 4 Blackstone’s Commentaries, 338. And this is the effect of the judgment of reversal rendered by the Supreme Court of Tennessee in this case, so that in no sense can that judgment *433 be deemed a final one. The case must go back and be tried ' upon its merits, and final judgment must be rendered before this, court can take jurisdiction. If after that it should be brought here for. review, we can then examine the defendant’s plea and decide upon its sufficiency.’.’
It may thus be seen that a plea of former conviсtion under the constitutional provision that no person shall be twice put1 in jeopardy for the same offense does not have the effect to prevent a prosecution to final judgment, although the former conviction or acquittal, may be finally held to be a cоmplete bar to any right of prosecution, and this notwithstanding the person is in jeopardy a second time if after one conviction or acquittal the júry is empanelled to try him again. We think, then, thát the effect of the immunity statute in question is not to change .the system of appellatе procedure in the Federal courts and give a right of review before final judgment ill a criminal case, but was intended-to provide an effectual defense .against further prosecution ..which if denied may be brought up for review after a final judgment in the, case.
We therefore reach the conclusion that the motion to dismiss the present writ be sustained, and it is so ordered.
Writ of error dismissed.