People v. Clarke

By the Court, Crockett, J.: The only question on this appeal which it is necessary to consider is, whether an order of the County Court, directing that a charge which has been ignored by a former Grand Jury be submitted to another Grand Jury, is, in any ease, an appealable order. Section four hundred and eighty-one of the Criminal Practice Act provides that an appeal may be taken “to the Supreme Court from a final judgment of the District Court or County Court, in all criminal cases amounting to a felony, on questions of law alone; also, from an order of the District Court or County Court granting or refusing a new trial, or which affects a substantial right in a criminal case amounting to a felony, on questions of law alone.’.’ Section four hundred and eighty-four provides that upon the appeal from the judgment any decision of the Court in an intermediate order or proceeding forming a part of the record may be revised.

In providing that intermediate orders or proceedings form[625]ing a part of the record may he reviewed on an appeal from the final judgment, it was clearly intended to prohibit a separate appeal from such intermediate orders or proceedings. Whether the intermediate orders and proceedings referred to are only those which occur between the finding of the indictment and the final judgment, or include also those which are preliminary to the indictment, such as the order appealed from in this case, or an order denying a challenge to a Grand Juror, or of the whole panel, need not be decided on this appeal. It will suffice to say on this point that if such preliminary orders and proceedings can be reviewed by this Court on appeal, it can only be on an appeal from the final judgment. Any other rule would lead to the greatest embarrassment and delay in the administration of justice in criminal cases. That portion of section four hundred and eighty-one which authorizes an appeal from an order “which affects a substantial right in a criminal case amounting to a felony.ILapplies only to orders made after final judgment, which, of course, could not be reviewed on an appeal from the judgment. In several cases we have been called upon to review, on appeal, orders of this character, relating to the time, mode, and manner of executing the judgment. Upon this construction of the statute, its provisions are reasonable and consistent. All orders and proceedings occurring prior to the judgment, which it was intended should be subject to review by this Court, can be corrected on an appeal from the judgment, or from an order granting or refusing a new trial; whilst an order affecting a substantial right of a party, made after final judgment, can be reviewed on a direct appeal from the order. These views are decisive of this appeal, inasmuch as the order appealed from is not appealable.