32 P. 202 | Idaho | 1893
The defendant was indicted at the September term, 1893, óf the district court of Shoshone county, for the crime of murder. On October 3, 1893, he was arraigned, and demurred to the indictment, and, the same being overruled, on the sixth day of October, 1893, he entered his plea of not guilty, at same time giving notice in open court that he would apply for a change of venue, and on same day filed his petition and certain affidavits in support thereof. The motion for change of venue being overruled, defendant applied to this court for a writ of error, and brings said ruling of district court to this court for review. Writ of error was issued, and upon the return thereof the attorney general moves to dismiss the same upon the ground that such writ will not lie from an order overruling a motion to change the place of trial of a criminal case. Argument was heard upon the motion and case together.
Section 9, article 5 of the constitution of Idaho provides as follows: “The supreme court shall have jurisdiction to review upon appeal any decision of the district courts or the judges thereof”; and it is contended by defendant that there being no provision in the statutes of Idaho for an appeal from an order of the district court overruling a motion for a change of venue in criminal cases, such order being final, it is within the power and jurisdiction of the supreme court to review the same upon writ of error. It is conceded by counsel for the defendant that the term “and decisions,” as used in the section of the constitution above referred to, is not to be construed as meaning all decisions made by said courts, or the judges thereof, during the progress of a trial, but only such as áre final; and he dla-fma that an order of the court overruling a motion for a change of place of trial is final, and counsel have argued ably and ingeniously in support of such contention, and cite many authorities which they claim support their view. Thus far we may go with counsel for defendant in their contention. If there is no
It would seem, then, that the questions involved in this ease are simply these: 1. Is the order of the district court overruling defendant’s motion for a change of venue a final order? 2. Do the statutes of Idaho provide for a “review on appeal” of such order? We have not been cited to, nor have we been able to find, a case where a direct appeal has been allowed from an order overruling a motion for change of venue in a criminal case, nor have we seen any authority holding that such an order is final. Powell on Appellate Proceedings, section 15, treating of proceedings in error, says: “It was an established principle in such proceedings in error that the appellate court would not sustain such proceedings in error except upon the final judgment in the court below; for, if there were further proceedings in the court below previous to final judgment, the proceedings in error would not be sustained for two reasons: 1. Because in such further proceedings in the ease the error excepted to might be so far corrected as that the party would have nothing to complain of; and 2. Because otherwise the case might be brought up on error repeatedly, while by waiting until the final judgment the appellate court could dispose of the errors in the case at once.” In the case under consideration the defendant has not, by reason of the action of the district court in overruling his motion for a change of venue, been deprived of the right to make it again, should his counsel deem such a course advisable in the further progress of the case, nor is it necessarily presumable that the court would adhere to its first ruling should the circumstances under which the second application is made warrant the court in coming to a different conclusion. It is by no means an unheard of proceeding for the trial court, after having once refused a change of venue in a criminal case, to conclude in the further progress of the case, as by the failure, after repeated efforts, to secure a jury,
Said chapter 5 also provides the manner in which such exceptions may be brought before the supreme court for review on appeal. It cannot then be claimed in verity that our statutes do not provide for an appeal in the case under consideration. Not only is it provided for, but the manner in which it shall be taken is fully and sufficiently set forth in the statutes referred to. The case of People v. Jordan, 65 Cal. 644, 4 Pac. 683, cited by defendant’s counsel, turned upon the very ground we have been considering — that is, that the Penal Code of that state made no provision for an appeal in criminal actions except “in criminal actions amounting to felonies.” (Cal. Pen. Code, par. 1235.) But the supreme court of that state, by article 6, paragraph 4, of the constitution of California, has appellate jurisdiction “in all criminal cases prosecuted by indictment or information.” The defendant was prosecuted by indictment. From an order sustaining defendant’s demurrer to the indictment the people appealed. The court held that the order appealed from was a judgment. The question of the frivolity of the judgment sustaining a demurrer to the. indictment was not mooted in that case, nor do we see how it could be, seriously. It disposed of the case. There was nothing further to be done under that indictment, it not being amendable; and, the statutes of California making no provision for an appeal from such final judgment, the court, under the provisions of the constitution referred to, issued its writ of error, and denied the respondent’s motion to dismiss the same. We see nothing in this case that conflicts with the conclusion we have reached in the case under consideration. Regan v. McMahon, 43 Cal. 625, was an appeal from an interlocutory decree in an action of partition. The statutes of California then in force provided for a direct appeal from such a decree; and the court held, adopting the language of same court in McCourtney v. Fortune, 42 Cal. 387, that, “upon appeal from a final judgment, an order made in the cause which is itself, by the statute, made the subject of a distinct appeal, cannot be reviewed.” And to the same effect is the decision in the case