State v. . Webb
70 S.E. 1064
N.C.
1911
Check Treatment
Hoke, J.

Tbe right of a person formally accused of crime to a speedy and impartial trial bas been a right guaranteed to Englishmen since Magna Oharta and to all peoples basing their system of jurisprudence on tbe principles of common law. Tbe Charter of Henry III., proclaimed in further assurance of the former and to make it in some respects more specific on this especial subject, concludes as follows: “We will sell to no man; we will not deny or defer to any man either justice or right.” Creasy on the English Constitution, pp. 134 and 135 and note. Tbe principle is embodied in tbe Sixth Amendment to tbe Federal Constitution and in some form is contained in this and most of our State constitutions; all of them, so far as examined. Tbe term “speedy,” being a word of indeterminate meaning and permitting, therefore, to some extent, of legislative definition (Ferrall v. Ferrall, 153 N. C., 174) ; the Legislatures of this and several other States have enacted, statutes on tbe subject tbe same or similar to tbat presented here, and while tbe question bas not been before our Court, the construction which bas generally obtained in other jurisdictions is to tbe effect tbat tbe law is peremptory in its requirements, and where a prisoner bas brought his case within its provisions be is entitled to bis discharge. People v. Morena, 85 Cal.; S. v. Kuhn, 154 Indiana, 450, etc. Tbe construction further being tbat in statutes expressed at this one is, tbe effect is to require simply tbat tbe prisoner be discharged from custody, and not *430 that be go quit of further prosecution. 12 Cyc., p. 500, note 16, citing S. v. Garthwaite, 23 N. J. L., p. 143, and other cases in support of the statement.

While the ruling of the court below, on authority, would seem to be erroneous, the appeal of the defendant must be dismissed because, in this State, no appeal in ordinary form lies in a criminal prosecution except from, a judgment on conviction or on plea of guilt duly entered. Revisal 1905, secs. 3274, 3275. It would lead to interminable delay and render the enforcement of the criminal law well-nigh impossible if an appeal were allowed from every interlocutory order made by a judge or court in the course of a criminal prosecution, or from any order except one in its nature final. Accordingly, it has been uniformly held with us, as stated, that an ordinary statutory appeal will not be entertained except from a judgment on conviction or some judgment in its nature final. S. v. Lyon, 93 N. C., 575; S. v. Hinson, 82 N. C., 540; S. v. Jefferson, 66 N. C., 309; S. v. Bailey, 65 N. C., 426; William Biggs, ex parte, 64 N. C., 202. In some of these decisions, as in S. v. Jefferson, supra, the very question presented was the right of a prisoner to be discharged from custody, and Pearson, Chief Justice, delivering the opinion dismissing the appeal, quoted with approval from Bailey’s case as follows: “An appeal cannot be taken on the State docket to this Court from any interlocutory judgment or order,” and then said: “It follows that the appeal in this case was improvidently allowed, and must be dismissed.” It is only to a very limited extent that such an appeal is allowed in civil cases, and these in cases restricted and very clearly defined. The case of Ledford v. Emerson, 143 N. C., 535, to which we were referred in the argument, was on the civil docket, and the order there was in its nature final. Nor would a habeas corpus in the present instance afford an efficient remedy. That writ, as noted in the recent case of Tinner Holley, In re, 154 N. C., 163, is not used in this State as a writ by which errors may be reviewed. The very question presented, in the court below, was on the right of a prisoner to his discharge from custody, and one judge of equal or concurrent jurisdiction would have no *431 power to review tbe decision of another. The case, then, is clearly one to be reviewed under the provisions contained in Art. IY, sec. 8, of the Constitution, conferring on this Court the power “to issue any remedial writs necessary to give it general supervision and control over the proceedings of the inferior courts.” The entire section being as follows: “The Supreme Court shall have jurisdiction to review, upon appeal, any decision of the courts below, upon any matter of law or legal inference. And the jurisdiction of said Court over ‘issues of fact’ and ‘questions of fact’ shall be the same exercised by it before the adoption of the Constitution of 1868, and the Court shall have the power to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts.”

It is suggested and urged that an appeal lies under and by virtue of the first clause of this section, “The Supreme Court shall have jurisdiction to hear, upon appeal, any decision of the court below, upon any matter of law or legal inference,” etc.; but the clause in question is only designed and intended to confer general appellate power on the Court, to be exercised under recognized and established forms and writs, or according to methods provided by the Legislature. The statutory appeal, with us, takes the place of the old writ of error, which only issued in review of-final judgments (Clark Criminal Procedure, p. 500; Rush v. Steamboat Co., 68 N. C., 12); and there being no provision made by statute for cases like the present, under Holley’s case, supra, and other cases mentioned, and many more could be cited, it is established that the proper writ to review the order of his Honor is the writ of certiorari, the same to be applied for in accordance with law and the course and practice of the court. The statute in question here was enacted in 1868, at a time when very few of our counties had court oftener than twice a year, and it is a suggestion worthy of consideration whether, under the changed conditions which now prevail, some safeguarded modifications of this legislation may not be desirable. For the reason stated, the appeal of defendant must be dismissed, and it is so ordered.

Appeal dismissed.