155 A.D. 821 | N.Y. App. Div. | 1913
The defendant was indicted by the grand jury of the county of Fulton for the crime of grand larceny in the first degree. The first count of the indictment charges the defendant with having committed such crime by means of a falsely written statement respecting the ability of Edward IT. Kahn, Incorporated, to pay for goods sought to be purchased from the Gloversville Silk Mills, a corporation. The representations are set out in full, and the statement which is charged to have been false is signed “Edward U. Kahn, Pres.” The second count
On arraignment the defendant plead not guilty and at the same time moved orally for a dismissal of the first count of the indictment on the ground that it did not state facts sufficient to constitute a crime, and that it was insufficient in law upon its face, in that the pretenses set forth were not such pretenses in writing as required by law to support a criminal prosecution. Subsequently an order was entered setting forth the making of such motion and its denial, and from that order the defendant appeals.
The People urge that the defendant has no right to a direct appeal from such an order, and that it is an intermediate one which can be reviewed only on an appeal from a judgment of conviction. The defendant insists that he had the right to make the motion to set aside the count of the indictment because upon its face it failed to state sufficient facts constituting a crime, and that a denial of his motion affected a substantial right which he has the privilege of reviewing before he is put to the expense and jeopardy of a trial.
We think the learned district attorney is correct in his claim that the order cannot be appealed from directly but can be reviewed only on an appeal from the judgment of conviction. The right of appeal in criminal cases is statutory only and in the absence of a statute authorizing it in a given case no appeal can be taken. (People v. Trezza, 128 N. Y. 529; People v. Priori, 163 id. 99, 107.) It is provided by section 517 of the Code of Criminal Procedure that a defendant can appeal to the Supreme Court only from a judgment of conviction after indictment. The People by section 518 are permitted to appeal to the Appellate Division of the Supreme Court from a judgment for the defendant entered upon a demurrer interposed by him to the indictment, and also from an order of the court arresting a judgment of conviction. This restricted right of appeal by the defendant has been consistently recognized by the courts and the plain reading of' the section has been observed and reiterated from time to time, the latest to which our attention has been called being in People ex rel. Stabile v. Warden, etc. (202 N. Y. 138, 152). Recognizing this rule, it
The confusion with respect to the practice and the right of a defendant in a criminal action, to have a review of intermediate orders made to his alleged prejudice, arises from a misconception of the holdings of the Court of Appeals in People v. Glen (173 N. Y. 395) and People v. Canepi (181 id. 398) and People v. Sexton (187 id. 495). In each of those cases there was an appeal by the defendant from a judgment of conviction, and all that was held was that certain intermediate orders and rulings, notwithstanding the apparent restriction of section 313 of the Code of Criminal Procedure, formed a part of the judgment roll and were reviewable where a defendant had been convicted and appealed from the judgment entered thereon. In none of those cases was it held that a direct appeal could be had from such intermediate orders, but the
Any other rule of practice would be disastrous to criminal procedure and the trial of indictments. Criminal trials could be indefinitely postponed if appeals were permitted from each intermediate order and ruling made upon the motion of the defendant.
The motion in the case at bar was made upon the ground that the facts stated in the first count of the indictment did not constitute a crime, which is one of the grounds of demurrer provided by section 323 of the Code of Criminal Procedure. The defendant, therefore, had his remedy by demurrer. It is only where a substantial right is affected which cannot be otherwise raised that the courts have enlarged the grounds for the setting aside of an indictment, and have held that section 313 was not restrictive as to the grounds upon which such a motion might be made. The defendant’s motion was oral and section 324 provides that a demurrer must be in writing. Besides, the defendant had plead not guilty, and while that plea stood, could not demur. But even if the motion be
If we are right in our conclusions it follows that the appeal must he dismissed.
All concurred.
Appeal dismissed.