United States v. Ainsworth , 3 D.C. App. 483 ( 1894 )

Mr. Justice Morris

delivered the opinion of the Court;

This is an appeal by the United States from a decision of the Supreme Court of the District of Columbia holding a criminal court, in which that court sustained a demurrer to an indictment.

A former indictment against the same defendant, Fred. C. Ainsworth having been by this court held insufficient on demurrer, a new indictment was found against him; and to this second indictment also a demurrer was interposed. The demurrer was sustained by the court below in presumed conformity with the opinion of this court in the former case.^* From the action of the court sustaining this demurrer the present appeal has been prosecuted by the United States.

A motion has been made on behalf of the appellee Ains-worth to dismiss the appeal, on the ground that in criminal cases there is no right of appeal reserved to the United States.

Upon the authority, conclusive upon us, of the case of the United States v. Sanges, 144 U. S., 310, the motion must prevail. We are unable to distinguish between that case and the present. In the elaborate opinion pronounced in that case by Mr. Justice Gray on behalf of the Supreme Court of the United States, it is authoritatively laid down as the law, that a writ of error or appeal does not lie on behalf of the United States in a criminal case, in the absence of express statute conferring the right of appeal. It is conceded that there was in this District no express statute conferring that right prior to the act which created this court; and it is impossible to find in that act any warrant for a new and radical departure. The terms in which the right of appeal is there given, do not differ substantially from those used in the act of March 3, 1891, Chap. 517, Sec. 5, 26 Stat., 827, which was invoked in the case of the United States v. Sanges.

We are bound by that decision; and we must, therefore, dismiss this appeal.

* See Ainsworth v. United States, 1 App. D. C., 518. — Reporter.