State v. Walker , 122 Ark. 574 ( 1916 )

Kirby, J.,

(after stating the facts). It is contended that the State is without authority to appeal from a judgment granting a motion for a new trial in a felony case.

The Constitution provides: “The Supreme Court, except in cases otherwise provided by this Constitution shall have appellate jurisdiction only, which shall be coextensive with the State, under such restrictions as may from time to time ibe prescribed 'by law,” etc. Art. 7, section 4, Constitution 1874.

“An appeal shall only be taken on a final judgment, except on ¡behalf of the State”’ Section 2584, Kirby’s Digest.

When the State desires an appeal, the prosecuting attorney prays it and a transcript of the record is made and transmitted to the Attorney General, and, “If the Attorney General, on inspecting the record, is satisfied that error has been committed to the prejudice’ of the State, and upon which it is important, to the correct and uniform administration of the criminal law, that the Supreme Court should decide, he may, by lodging the transcript in the clerk’s office of the Supreme Court within sixty days after the decision, take the appeal.” Section 2603, Kirby’s Digest.

In State v. Flynn, 31 Ark. 35, where the State appealed from an order granting defendant a change of venue from Garland to Pulaski County, the court said: “Whilst we would not encourage or suppose that the Legislature intended to provide for appeals by the State, in felonies, from every interlocutory decision of the court, yet it was well enough for the Attorney General to allow the appeal in this case, before final judgment, for if the court had proceeded to try the prisoner, the verdict and judgment would have been invalid if it turned out on appeal that the court had no jurisdiction of the cause.”

In State v. Ross, 34 Ark. 376, the State appealed from an order granting the defendant a new trial upon the ground that there was no authority under the law for holding the term of the circuit court of Pike County at which the defendant was convicted and although this court held that the trial court was in error in its rulings, declined to remand the cause with instructions to sentence the defendant and dismissed the appeal as not authorized by law.

The case of State v. Robinson, 55 Ark. 439, is not an authority, as contended by appellant, in favor of the proposition that the State can appeal from a judgment granting the defendant a new trial in a felony case. It questioned only the court’s ruling on the sufficiency of the indictment to charge a public offense and belongs in the classification of appeals allowed as necessary for the correction of errors in order to the correct and uniform administration of the criminal law.

It was evidently the purpose in excepting the State from the terms of the statute providing an appeal shall only be taken on a final judgment in prosecutions for felonies, to permit appeals from such interlocutory rulings and decisions as might affect the jurisdiction of the cause or as would be necessary for the correction of errors in order to the correct and uniform administration of the criminal law, and from the statutes and authorities quoted, it is apparent that it was not intended to permit appeals by the State from judgments granting new trials to defendants to review such decisions or control the discretion of the circuit court in the granting of new trials in prosecutions for felonies.

The appeal not being from a final judgment nor one from which the State can take an appeal, it must be dismissed and the trial court will proceed with the cause. It is so ordered.