People v. Pummer ( 1976 )

399 Mich. 326 (1976) 249 N.W.2d 78

PEOPLE
v.
PUMMER

Docket No. 57200, (Calendar No. 4).

Supreme Court of Michigan.

Argued April 5, 1976. Decided December 31, 1976.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and James M. Justin, Assistant Prosecuting Attorney, for the people.

State Appellate Defender Office (by John B. Phelps) for defendant.

Amicus Curiae: Edward G. Durance, Midland County Prosecuting Attorney, for the Prosecuting Attorneys Association of Michigan.

WILLIAMS, J.

Defendant was convicted of first-degree murder, but before he was sentenced, the trial judge granted his motion for new trial. The prosecutor sought leave to appeal the order granting new trial and made specific reference to our opinion in People v Blachura, 390 Mich. 326; 212 NW2d 182 (1973), which affirmed the jurisdiction of the Court of Appeals to grant leave to appeal to the prosecutor from an order granting a new trial.

After the Court of Appeals granted the prosecutor leave to appeal, the parties briefed issues relating to the propriety of the trial judge's instructions to the jury. After formal submission and oral argument, the Court of Appeals concluded that leave was improvidently granted and dismissed the appeal. The Court of Appeals relied upon People v Martin, 59 Mich. App. 471; 229 NW2d 809 (1975), resurrecting MCLA 770.12; MSA 28.1109, and found "[n]o provision is included in the statute authorizing appeals by the people from an order granting a new trial". 61 Mich. App. 552, 553; 233 NW2d 79 (1975).

Shortly thereafter we held that the prosecutor could appeal as of right an order of the circuit judge quashing an information, since it "was a final pretrial decision of the circuit court". Jackson County Prosecutor v Court of Appeals, 394 Mich. 527, 528; 232 NW2d 172 (1975). In so doing, we expressly overruled Martin, supra. On the same day, we entered an order on the prosecutor's application in this case, granting leave to consider whether the prosecutor could appeal from an order granting a new trial "as of right or by leave", 394 Mich. 836 (1975).

In light of Blachura and Jackson County Prosecutor, supra, there should remain little question that appeals by the prosecutor, like those of all other litigants, are governed by MCLA 600.308; MSA 27A.308, and rules formulated by our Court. Final judgments are appealable as of right, GCR 1963, 806.1; interlocutory orders are appealable by leave, GCR 1963, 806.2.

In People v Pickett, 391 Mich. 305, 312; 215 NW2d 695 (1974), we accepted our earlier-stated standard that:

"An ultimate or final judgment is not reached in a criminal case, following conviction, until the court pronounces a sentence, which leaves nothing to be done but enforcement." People v Fisher, 237 Mich. 504, 506; 212 N.W. 70 (1927).

Even earlier, Chief Justice CAMPBELL stated:

"But what are known as final orders are adjudications upon motions or other applications, not involving a hearing upon pleadings and proofs, but upon other issues interlocutory or collateral, whereby some supposed right of a party is definitely cut off, or some liability fixed upon him. Usually, if not always, an order made on such a side hearing is only final if made in a certain way; whereas, if the decision had been otherwise it would have been interlocutory; while an absolute decree made in favor of either party is final. If the decision of a motion opens a case it is not generally final, unless it cuts off some acquired right under a decree. If it closes the matter and precludes any further hearing or investigation it is final." Kingsbury v Kingsbury, 20 Mich. 212, 215 (1870).

Clearly, an order granting a new trial is a non-final, interlocutory order. Therefore, under Blachura, the prosecutor proceeded correctly in applying for leave to appeal to the Court of Appeals.

We therefore reverse the judgment of the Court of Appeals and remand the cause for a decision on the substantive issues raised by the prosecutor.

In accordance with GCR 1963, 866, the order of this Court pursuant to the decision herein shall be entered and issued immediately upon the filing of this opinion.

COLEMAN, FITZGERALD, LINDEMER, and RYAN, JJ., concurred with WILLIAMS, J.

KAVANAGH, C.J.

Defendant was convicted by a jury of murder in the first degree in February, 1973. Prior to sentencing, defendant made a motion for a new trial, which motion was granted on November 5, 1973, the trial judge concluding that "the instructions were of such a nature as to generally confuse the jury and to unduly emphasize murder in relation to the discussion of the other possible verdicts there instructed, as well as to de-emphasize if not make impossible, a finding of not guilty by reason of insanity * * *".

"[I]t appears manifest injustice to the rights of the defendant may well have resulted * * * and this court grants a new trial to the defendant."

A new trial date of March 11, 1974 was set. The prosecution filed an application for leave to appeal to the Court of Appeals, and a motion to stay proceedings, relying on People v Blachura, 390 Mich. 326; 212 NW2d 182 (1973), and GCR 1963, 806.2. The Court of Appeals granted the motion and application for leave February 4, 1974.

The case was argued January 10, 1975, and the Court of Appeals requested supplemental briefs on the question of its jurisdiction to hear the appeal. Both sides filed briefs on this question.

In a per curiam opinion dated May 30, 1975, the Court of Appeals held that leave to appeal had been improvidently granted, relying on People v Martin, 59 Mich. App. 471; 229 NW2d 809 (1975). 61 Mich. App. 552; 233 NW2d 79 (1975).

On August 19, 1975, this Court granted the prosecution's motion to stay proceedings and granted leave to appeal "limited to the questions of the appealability to the Court of Appeals, as of right or by leave, of a grant of a motion for a new trial in a criminal case, and whether such a grant is reviewable by superintending control". 394 Mich. 836 (1975).

Arguments were presented on those questions in April, 1976.

We affirm.

I

We begin by stating that this case is not controlled by People v Blachura, supra. In Blachura, defendant was indicted on six counts of perjury. The jury trial ended with defendant being convicted on five of the six counts. Defendant moved for a new trial, and a new trial was granted on two counts, with the remaining three being dismissed with prejudice.

The prosecutor was granted leave to the Court of Appeals. Defendant was granted leave to this Court to consider "'only the narrow issue of whether or not the Court of Appeals has jurisdiction' in this matter". 390 Mich pp 331, 332.

All seven justices agreed that the answer to the question presented was in the affirmative, i.e., the Court of Appeals "had jurisdiction in this matter".

The two opinions written in Blachura disagree as to various aspects concerning the reasons for jurisdiction, and the limits thereto, but none of that discussion was necessary to the decision of the "narrow issue" presented.

MCLA 770.12; MSA 28.1109 provides in pertinent part:

"A writ of error may be taken by and on behalf of the people * * * in the following instances, to wit:

"(a) From a decision or judgment quashing or setting aside any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which such indictment or information is founded;

"(b) From a decision arresting a judgment of conviction or directing a judgment of acquittal for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which such indictment or information is founded;

"(c) From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy, or from any other order of the court relative to admission of evidence or proceedings had or made at any time before the defendant is put in jeopardy."

That is the extent of the prosecution's right to appeal to the Court of Appeals. Because an order granting a motion for a new trial is not included within MCLA 770.12; MSA 28.1109, appeal will not lie.

The prosecution argues that Const 1963, art 6, § 10, and MCLA 600.308; MSA 27A.308 (RJA § 308), and GCR 1963, 806.2(2) supersede the previously cited statutory limitations on prosecutorial appeals. We disagree.

Const 1963, art 6, § 10 provides that "The jurisdiction of the court of appeals shall be provided by law and the practice and procedure therein shall be prescribed by rules of the supreme court."

Pursuant to this constitutional provision, MCLA 600.308; MSA 27A.308 (RJA § 308) was enacted, providing:

"The court of appeals has jurisdiction on appeals from:

"(1) All final judgments from the circuit courts * * *

"(2) Such other judgments or interlocutory orders as the supreme court may by rule determine."

GCR 1963, 806 provides:

".1 Appeal as of Right. In all criminal and civil matters, an aggrieved party shall have a right to appeal from all final judgments or final orders from the circuit courts * * *.

".2 Appeal by Leave. The court of appeals may grant leave to appeal from: * * *

"(2) Any judgment, order, act or failure to act by the circuit courts, * * * which is not a final judgment appealable as of right."

No contention is made that the granting of defendant's motion for a new trial is a final judgment or final order giving the prosecution a right to appeal. See Jackson County Prosecutor v Court of Appeals, 394 Mich. 527; 232 NW2d 172 (1975); People v Pickett, 391 Mich. 305, 313; 215 NW2d 695 (1974).

Neither GCR 1963, 806.2(2), nor RJA §§ 308 and 309 were intended to "thoughtlessly eliminate the traditional distinction between prosecutor and defendant appeals". People v Blachura, supra, p 340 (LEVIN, J., concurring).

The ABA Standards Relating to Criminal Appeals, § 1.4 (Approved Draft, 1970), do not provide for prosecution appeal from a trial judge's granting of a new trial.

"The trial court has likely acted upon a claim of error in the proceedings which the defense could have raised on appeal, had the trial judge denied the motion. In a sense, the prosecution has lost the chance to seek a ruling on the question from the higher tribunal unless it now has the right to take the matter up to the appellate court. On the other hand, the trial court possibly could have ruled in favor of the defense contentions during trial rather than after trial. If * * * instructions to the jury or other trial questions were decided initially in favor of the defendant, only a handful of states would permit prosecution appeal from a verdict favorable to the defense. It is not clear, therefore, that broad provisions for appeals from post-trial orders are necessary or sound." Id, p 39.

Because there is no provision in MCLA 770.12; MSA 28.1109 allowing the prosecution to appeal the grant of a new trial by the trial court, we hold that the order is not appealable to the Court of Appeals.

II

Having held that the grant of a new trial is not appealable to the Court of Appeals, we turn to the consideration of whether the prosecution can seek an order of superintending control from the Court of Appeals to challenge the trial court's grant of a motion for a new trial.

GCR 1963, 711.4 provides that the Court of Appeals, as well as this Court, and the circuit courts have "jurisdiction to issue superintending control orders to inferior courts". While this Court has general superintending control over all the state courts, Const 1963, art 6, § 4, the Court of Appeals has power to issue an order of superintending control only "in respect of a particular error in an actual case * * * ", Morcom v Recorder's Court Judges, 15 Mich. App. 358, 360; 166 NW2d 540 (1968). See also Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672; 194 NW2d 693 (1972).

GCR 711.3 provides that superintending control is to be used in place of the former writs of certiorari, mandamus, and prohibition.

The nature and scope of the former writs define the boundaries of the Court of Appeals order of superintending control. Accordingly, such orders are only available concerning legal questions that would formerly have been reviewable by mandamus, certiorari or prohibition. Genesee Prosecutor v Genesee Circuit Judge, supra. Any other interpretation and expansion of the availability of superintending control would do away with the distinction between these extraordinary writs and ordinary appeals. An extraordinary writ provides an efficient means of resolving legal and jurisdictional questions, without the need of ancillary factual determinations more appropriately resolved by appeal. "The peremptory common-law writs are among the most potent weapons in the judicial arsenal. ``As extraordinary remedies, they are reserved for really extraordinary causes.' Ex parte Fahey, 332 U.S. 258, 260 [67 S. Ct. 1558; 91 L. Ed. 2041] (1947)." Will v United States, 389 U.S. 90, 107; 88 S. Ct. 269; 19 L. Ed. 2d 305 (1967).

Additionally, as we stated in Part I, supra, the Legislature has carefully limited the types of cases the prosecution may appeal to the Court of Appeals. If an order of superintending control were available to review alleged errors such as presented by the instant case, the specific limitations of the statute would be effectively nullified.

"Where the appeal statutes establish the conditions of appellate review, an appellate court cannot rightly exercise its discretion to issue a writ whose only effect would be to void those conditions and thwart the [Legislature's] policy against piecemeal appeals in criminal cases." Roche v Evaporated Milk Association, 319 U.S. 21, 30; 63 S. Ct. 938; 87 L. Ed. 1185 (1943).

"The State should not be permitted to accomplish by certiorari what it cannot do by appeal. The right of the State to prosecute error in a criminal case exists only when such right is conferred by statute. * * *

"Where the State has no right of appeal from an order granting defendant a new trial, certiorari could not be granted as a substitute. To bring up the matter by certiorari, would be to accomplish by indirection what the statute does not expressly permit." State v Paul, 80 NM 746, 747; 461 P2d 228, 229 (1969) cert den 397 U.S. 1044 (1970).

Accord, State v Todd, 224 NC 776; 32 SE2d 313 (1944).

In the case such as this, the only writ that arguably would formerly have been available would be certiorari. However, "The writ of certiorari is for review of errors of law and our inquiry is limited to determining ``if the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law.'" Genesee Prosecutor v Genesee Circuit Judge, supra, p 681.

The discretionary determination of the trial court to grant a new trial due to his belief that his instructions were erroneous or confusing does not fit within the circumstances allowing grant of a writ of certiorari, and, accordingly, an order of superintending control is not available from the Court of Appeals.

The opinion of the Court of Appeals is affirmed. The cause is remanded for trial.

LEVIN, J., concurred in part I of the opinion of KAVANAGH, C.J.

LEVIN, J. (dissenting).

I concur in part I of the Chief Justice's dissenting opinion, which would hold that an order granting a new trial to a defendant in a criminal case is not appealable.

I have not joined in part II, which declares that such an order may not be reviewed by the Court of Appeals in the exercise of its power of superintending control. That issue is not before us.^[1] The prosecutor sought and obtained leave to appeal from the Court of Appeals and did not seek superintending control.

I write separately in response to the opinion of the Court.

I

The Court declares:

"In light of [People v] Blachura [390 Mich. 326; 212 NW2d 182 (1973)] and Jackson County Prosecutor v [Court of Appeals, 394 Mich. 527; 232 NW2d 172 (1975)], there should remain little question that appeals by the prosecutor, like those of all other litigants, are governed by MCLA 600.308; MSA 27A.308, and rules formulated by our Court. Final judgments are appealable as of right, GCR 1963, 806.1; interlocutory orders are appealable by leave, GCR 1936, 806.2."

If Blachura and Jackson County Prosecutor were dispositive I would be obliged to join in the disposition of the Court. They are not, however, controlling.

In Blachura the Court of Appeals had granted leave to appeal from an order of the trial court quashing and dismissing with prejudice three counts of an indictment and granting a new trial on two counts. In two opinions, one signed by four justices and another by three, we all agreed that the Court of Appeals had jurisdiction to grant leave to appeal from what all agreed was a final order. That was the holding.^[2]

The reliance on Jackson County Prosecutor is also misplaced. In that case the circuit judge quashed an information on the ground that the statute under which the defendant had been charged "was ``too broad' and thus was constitutionally defective". Even before the establishment of the Court of Appeals and the amendment to the Revised Judicature Act establishing its jurisdiction, the prosecutor had a right under the Code of Criminal Procedure to appeal an order dismissing an information on the ground of unconstitutionality.^[3] There was, thus, no issue in Jackson County Prosecutor regarding the jurisdiction of the Court of Appeals to entertain the appeal. The issue was whether the order was appealable as of right or on leave granted. We held that because the order dismissing the information was final it was appealable as of right.^[4]

Both Blachura and Jackson County Prosecutor were appeals from final orders and are not precedentially binding on the question of whether the prosecutor may appeal an interlocutory order.^[5]

II

The reasoning of the prevailing opinion in Blachura focused on the "All final judgments" language^[6] of the Revised Judicature Act as amended to establish the jurisdiction of the Court of Appeals.^[7] Final judgments are appealable as of right.^[8]

The Court today posits jurisdiction on the companion provisions of the Revised Judicature Act as so amended authorizing appeals from "interlocutory orders as the supreme court may by rule determine"^[9] (emphasis added) and the provisions of the court rule authorizing the Court of Appeals to grant leave to appeal from any order of the trial court "which is not a final judgment appealable as of right".^[10]

Although a literal reading of the amendments to the Revised Judicature Act establishing the jurisdiction of the Court of Appeals and of the court rules adopted by this Court following the establishment of the Court of Appeals permits the construction today placed on those provisions, that construction is not consonant with the history of these provisions or the statutory pattern in this and other jurisdictions^[11] of providing separately for prosecutor appeals.

The Judicature Act of 1915 could have been literally construed to allow prosecutor appeals.^[12] Nevertheless, prosecutor appeals were separately treated.

In 1917 the Legislature provided for appeal to this Court from an order dismissing an information "based upon the invalidity or construction of the statute".^[13] This provision was codified in the Code of Criminal Procedure^[14] and carried forward to the present with an amendment, in 1941, expanding the prosecutor's right of appeal to include orders "relative to admission of evidence or proceedings had or made at any time before the defendant is put in jeopardy".^[15] This "specific" statutory provision is today read off the statute books.^[16]

GCR 1963, 806 (appeals to Supreme Court — by right and by leave), as originally adopted before the creation of the Court of Appeals, was literally subject to the construction that it covered prosecutor appeals.^[17] It was not, however, so construed.

III

The amendments to the Revised Judicature Act establishing the jurisdiction of the Court of Appeals,

— providing for appeals as of right from final judgments (fns 7 and 8), and

— authorizing this Court to "determine" by rule the other judgments or interlocutory orders which would be within the jurisdiction of that court (fn 9),

imposed the responsibility for "determining" the scope of this "other" jurisdiction of the Court of Appeals on this Court.

The materials presented to this Court when chapter 80 of the General Court Rules was revised in 1964, shortly before the Court of Appeals was installed, contain no reference whatsoever to prosecutor appeals. It is apparent on comparison of the language of Rule 806 as originally adopted (appeals to the Supreme Court)^[18] and amended Rule 806 (appeals to the Court of Appeals)^[19] that the amended rule follows the format of the original rule. There is no reason to suppose that this Court in adopting the materials submitted to it did more than simply restructure the language of Rule 806 without any purpose of enlarging the jurisdiction of the Court of Appeals to hear prosecutor appeals.

Pertinent in this connection is GCR 1963, 801.1 providing both before and after the revision of chapter 80 that it was not intended thereby to "restrict, enlarge or change the right or scope of review provided by law, except as explicitly set out in these rules". (Emphasis supplied.) In 1966 the Court of Appeals rules committee recommended a number of revisions of chapter 80 including the elimination of this sentence. In opposition it was stressed that "[t]he purpose of this language is to emphasize the intent of the rules that the basic right of appeal is to be found in the statutes and common law and that the rules only relate to the methods and procedures for appeal".^[20]

A contemporaneous opinion written by Justice O'HARA, who was on the Court when Rule 806 was revised in 1964, states: "There is a statute defining the right of appeal by the people. It has been in force for many years and has been the subject of judicial construction." People v Brundage, 381 Mich. 399, 402; 162 NW2d 659 (1968) (emphasis supplied).^[21]

The Court of Appeals has been in operation for nearly 12 years. The Court's decision today is the first judicial declaration that in adopting GCR 1963, 806.2(2) in 1964 this Court "determined", within the meaning of the amended Revised Judicature Act, to enlarge the jurisdiction of the Court of Appeals and to allow prosecutors to appeal an order granting a new trial.^[22]

The concept of expanding the appellate rights of prosecutors has considerable merit. The Legislature has, however, in the Code of Criminal Procedure, defined the scope of that right. Under the Constitution, it is the prerogative of the Legislature to provide "[t]he jurisdiction of the court of appeals".^[23]

Even if it is thought that the amended Revised Judicature Act, establishing the jurisdiction of the Court of Appeals, supersedes in this regard the Code of Criminal Procedure and that this Court has the authority by rule to enlarge the jurisdiction of the Court of Appeals to consider prosecutor appeals, there is no evidence that the Court has — before today's decision — exercised that authority. The Court expands the jurisdiction of the Court of Appeals without analysis on the mistaken premise that the questions raised by this appeal have already been decided.^[24]

NOTES

[1] See Const 1963, art 6, § 4; MCLA 600.310; MSA 27A.310; GCR 1963, 711.4(1).

[2] The opinion signed by three justices, which I wrote, would have limited the review by the Court of Appeals to so much of the trial court's order as dismissed the three counts and would have in effect modified the grant of leave insofar as it might have made possible review of the grant of a new trial.

While the majority did not modify the order granting leave, it does not follow that the Court considered and held that the Court of Appeals has jurisdiction to hear an appeal from an order granting a defendant a new trial.

[3] The statute provides:

"A writ of error may be taken by and on behalf of the people of the state of Michigan from any court of record in said state direct to the supreme court thereof, in all criminal cases, in the following instances, to wit:

"(a) From a decision or judgment quashing or setting aside any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which such indictment or information is founded;

"(b) From a decision arresting a judgment of conviction or directing a judgment of acquittal for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which such indictment or information is founded;

"(c) From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy, or from any other order of the court relative to admission of evidence or proceedings had or made at any time before the defendant is put in jeopardy.

"The right of the defendant to bail upon issuance of a writ of error under the provisions of this section shall be governed by the provisions of chapter 5 of this act." MCLA 770.12; MSA 28.1109.

[4] "The act of the circuit court in quashing the information in this case was a final pretrial decision of the circuit court, MCLA 600.308; MSA 27A.308, which shall be appealable as of right to the Court of Appeals, MCLA 600.309; MSA 27A.309." Jackson County Prosecutor v Court of Appeals, 394 Mich. 527, 528; 232 NW2d 172 (1975).

[5] An order granting a new trial is an interlocutory order. See 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 122, authors' comments accompanying Rule 527.

[6] "600.308 was written pursuant to that constitutional direction. GCR 1963, 801, also adopted pursuant to the new constitution, provides § 3 which is headed ``Statutory Jurisdiction of Court of Appeals' and repeats the language of 600.308. It refers to all final judgments." (Emphasis by the Court.) People v Blachura, 390 Mich. 326, 334-335; 212 NW2d 182 (1973).

"Pursuant to this directive the statute set forth in 600.308 was enacted providing in part for Court of Appeals jurisdiction over ``all final judgments.'" People v Blachura, supra, p 337.

While the prevailing opinion did not declare that the section of the Code of Criminal Procedure authorizing prosecutor appeals, MCLA 770.12; MSA 28.1109, had been superseded by the amendment to the Revised Judicature Act establishing the jurisdiction of the Court of Appeals, 1964 PA 281; MCLA 600.308; MSA 27A.308, that was, concededly, the tendency of the reasoning. It has been said, however: "The reasoning in an opinion is not that of the court, but of the judge who prepares and delivers it. It may or may not be considered sound and unanswerable, and as such is the subject of criticism. The conclusion arrived at and announced upon the several questions discussed and essential to a proper disposition of the case, is that of the court, and in concurring in such conclusions it is not generally supposed or understood that everything contained or said in the opinion is thereby unqualifiedly and unquestionably adopted as the opinion of the court." Larzelere v Starkweather, 38 Mich. 96, 100-101 (1878).

[7] "The court of appeals has jurisdiction on appeals from:

"(1) All final judgments from the circuit courts, court of claims, and recorder's court, except judgments on ordinance violations in the traffic and ordinance division of recorder's court. Appeals from final judgments from all other courts and from convictions for ordinance violations in the traffic and ordinance division of recorder's court shall be taken to the circuit courts, upon which further review may be had only upon application for leave to appeal granted by the court of appeals." MCLA 600.308; MSA 27A.308; 1964 PA 281, as amended by 1968 PA 116.

[8] MCLA 600.309; MSA 27A.309.

[9] "The court of appeals has jurisdiction on appeals from:

* * *

"(2) Such other judgments or interlocutory orders as the supreme court may by rule determine." MCLA 600.308; MSA 27A.308; 1964 PA 281.

[10] "The Court of Appeals may grant leave to appeal from:

* * *

"(2) Any judgment, order, act or failure to act by the Circuit Courts, Court of Claims, and Recorder's Court, except on ordinance violations in the Traffic and Ordinance Division of Recorder's Court, which is not a final judgment appealable as of right." GCR 806.2(2).

[11] In some jurisdictions the prosecutor may not appeal at all (Tex Const, art 5, § 26. Cf. Va Const, art 6, § 1 [no appeal "allowed to the Commonwealth in a case involving the life or liberty of a person, except * * * in any case involving the violation of a law relating to the State revenue."]). In others he may appeal any order or judgment except an acquittal (Conn Gen Stat Ann, § 54-96 [1976 Pocket Part]; Vt Stat Ann, title 13, § 7403 [1974]; Ohio Rev'd Code Ann, § 2953.14 [1975]). Still other jurisdictions take an intermediate position (Ga Code Ann, § 6-1001a et seq. [1975]; Wis Stat Ann, § 974.05 [1971]; Okla Stat Ann, title 22, §§ 1053, 1053.1, 1054 [1958, 1976-1977 Pocket Part]; NY Code Crim Proc, § 450.20 et seq. [McKinney, 1971]; Cal Penal Code Ann, § 1238 [1976 Pocket Part] [questions of law]), similar to that expressed in the Code of Criminal Procedure (MCLA 770.12; MSA 28.1109 [see fn 3, supra]) and embodied in the American Bar Association Project for Standards in Criminal Justice, Standards Relating to Criminal Appeals (Approved Draft, 1970), § 1.4, permitting a prosecutor to appeal from a dismissal of an information on substantive grounds and pretrial orders that might seriously impede the prosecution:

"1.4. Prosecution appeals.

"(a) The prosecution should be permitted to appeal in the following situations:

"(i) from judgments dismissing an indictment or information on substantive grounds, such as the unconstitutionality of the statute under which the charge was brought, or for failure of the charging instrument to state an offense under the statute;

"(ii) from other pretrial orders that terminate the prosecution, such as upholding the defenses of double jeopardy, autrefois convict, autrefois acquit, or denial of speedy trial;

"(iii) from pretrial orders that seriously impede, although they do not technically foreclose, prosecution, such as orders granting pretrial motions to suppress evidence or pretrial motions to have confessions declared involuntary and inadmissible.

"Such judgments are likely to rest upon principles that ought to be clearly and uniformly applied throughout the state.

"(b) Where more than one level of appellate review is provided, the prosecution should be permitted to seek further review in the highest court whenever an intermediate court has ruled in favor of a defendant-appellant.

"(c) In an appeal at the instance of the prosecution, special provision should be made as to the custody of the defendant. A defendant should not be denied liberty pending determination of such an appeal unless there is cogent evidence that he will not abide by the judgment of the appellate court."

The accompanying commentary states:

"The subject of prosecution appeals has occupied more space in articles and lectures than any other topic dealing with criminal appeals. In 1907 Professor Roscoe Pound briefly recommended a reform of ``giving the State power to obtain effectual review of prejudicial errors at the trial and refusing to apply the rule as to double jeopardy till the cause has been completely adjudicated.' Inherent and Acquired Difficulties in the Administration of Punitive Justice, 4 Proceedings of the American Political Science Association 222, 239 (1907). The leading article advocating appellate review is that of Professor Justin Miller, Appeals by the State in Criminal Cases, 36 Yale L J 486 (1927). The American Law Institute included provisions for limited prosecution appeal in its Code of Criminal Procedure, § 428 (1931). The Institute enlarged its position later with a resolution recommending power to appeal by the prosecution even where a person has been acquitted generally if, in the course of the trial, a material error has been made to the prejudice of the state. ALI, Administration of Criminal Law, § 13 (1935). The most vigorous opponent to broad prosecution appeal has been Professor Lester Orfield, who takes up the matter in an early chapter in his book, Criminal Appeals in America, ch 3 (1939)."

[12] "The supreme court shall have a general superintending control over all inferior courts, to prevent and correct errors and abuses therein, where no other remedy is expressly provided by law, and shall have also jurisdiction of suits, actions and matters brought before it by writ of certiorari or writ of error, when the same shall be allowed by law to any inferior court, to magistrates and other officers, as well in cases of prosecution for any offense, misdemeanor or penalty, in the name of the people of this state, as in other cases." 1948 CL 601.9; MSA 27.29.

"Writs of error upon any final judgment or determination, where the judgment exceeds in amount 500 dollars, or where judgment has been rendered upon a directed verdict for defendant in cases involving a claim of more than 500 dollars, may issue, of course, out of the supreme court, in vacation as well as in term, and shall be returnable to the same court; and in all other cases such writ may issue in the discretion of the supreme court or any justice thereof upon proper application; Provided, however, That if said issue involves a construction of the constitution or of any statute of this state, or any matters of great public importance or involves the contest of a will, such application need only show such fact." 1948 CL 650.1; MSA 27.2591. (Emphasis added.)

[13] 1917 PA 159. Subparagraphs (a) and (b) of the statute are quoted in fn 3, supra.

[14] 1927 PA 175, ch x, § 12; 1929 CL 17366.

[15] 1941 PA 132. Subparagraph (c) of the statute is quoted in fn 3, supra.

[16] Contrast Council No 23, Local 1905, AFSCME v Recorder's Court Judges, 399 Mich. 1; 248 NW2d 220 (1976).

[17] ".1 Appeal of Right. In all criminal and civil matters, an aggrieved party may have an appeal as a matter of right from the circuit, superior, and recorder's courts if the appeal is taken from a final order, judgment or sentence in accordance with these rules and within the time prescribed by these rules, except as herein otherwise provided.

".2 Appeal by Leave. Leave to appeal shall be required in the following matters:

"(1) Final orders or judgments for money or property rights involving not in excess of $3,000. * * *

"(2) Final orders or judgments of the circuit court in appeals from an inferior court or tribunal * * *.

"(3) Judgments in criminal matters in which the minimum sentence imposed is less than 1 year.

"(4) Final orders and judgments in habeas corpus proceedings.

"(5) All orders and judgments in actions for divorce * * *.

"(6) Appeals from interlocutory orders.

"(7) Appeals from administrative agencies.

"(8) Appeals from orders or judgments entered in receivership proceedings * * *." GCR 1963, 806.

[18] See fn 17, supra, for text.

[19] ".1 Appeal as of Right. In all criminal and civil matters, an aggrieved party shall have a right to appeal from all final judgments or final orders from the Circuit Courts, Court of Claims and Recorder's Court, except judgments on ordinance violations in the Traffic and Ordinance Division of Recorder's Court. * * *

".2 Appeal by Leave. The Court of Appeals may grant leave to appeal from:

"(1) Final or interlocutory judgments or orders of administrative agencies or tribunals which by law are appealable to the Court of Appeals or the Supreme Court.

"(2) Any judgment, order, act or failure to act by the Circuit Courts, Court of Claims, and Recorder's Court, except on ordinance violations in the Traffic and Ordinance Division of Recorder's Court, which is not a final judgment appealable as of right.

"(3) Orders in domestic relations cases * * *.

"(4) Final judgments entered by the circuit court on appeals from any other courts.

"(5) Such other matters as are provided by the rules of the Supreme Court or other laws." GCR 1963, 806 (as amended).

[20] Memorandum from Jason L. Honigman to the Justices, March 11, 1966.

The language of Rule 801.1 is based upon Court Rule No 55 (1931), and Court Rule No 55 (1945), providing that orders or judgments for which review is provided by law, whether by writ of error, appeal or other writ or remedy "shall be reviewed by notice of appeal" (1931); "by appeal" (1945).

[21] Justice BRENNAN signed Justice O'HARA's opinion.

The plurality opinion, written by Justice ADAMS, signed by Chief Justice DETHMERS and Justice T.M. KAVANAGH, did not advert to the Code of Criminal Procedure; there is no suggestion that there was any disagreement on the proposition advanced by Justice O'HARA. Justices KELLY and BLACK did not participate.

[22] The rule is well established that a judge's decision to grant a new trial on the ground that the verdict is contrary to the great weight of the evidence will not be reviewed on appeal except for abuse of discretion. Few cases find an abuse of discretion. See Patzke v Chesapeake & O R Co, 368 Mich. 190; 118 NW2d 286 (1962); 3 Honigman & Hawkins, supra, p 113, authors' comments accompanying Rule 527; 7A Callaghan's Michigan Pleading & Practice, § 57.105(a) (1976 Cum Supp).

[23] Const 1963, art 6, § 10.

[24] The Court reverses the judgment of the Court of Appeals and remands "the cause for a decision on the substantive issues raised by the prosecutor". It is unclear whether this would preclude the Court of Appeals from dismissing the granted leave as improvident or whether this Court is exercising a judgment on whether leave should have been granted in the instant case.