At the outset the district attorney challenges the right of the defendants to appeal from the order sought to be reviewed, and moves to dismiss the appeal upon the ground that the order is not appealable.
*711We approach the consideration of this question well aware that the Appellate Division of this court in the first department has held that an independent appeal will lie. by a defendant from such an order (People v. Sarvis, 69 App. Div. 604), and we ourselves have entertained like appeals. (People v. Georger, 109 App. Div. 111; People v. Bartels, 110 id. 922; 96 N. Y. Supp. 1139.) It should, however, be said that in the Georger case the defendant’s right to appeal was not questioned, and in the Bartels case, while the question was raised, the conclusion was reached that the order was right upon the merits and was aifinned. If we were agreed that the order appealed from was right, we might again affirm the order, leaving the question of a defendant’s right to appeal for the Court of Appeals, where it must ultimately be determined, but there is a division among us in that respect. We would content ourselves with following the decision in the Samis case and denying the motion to dismiss tire appeal were it not for the more recent decisions, to which we will call attention presently, which we think require us to examine the question anew.
Whatever may have been the former practice of removing the trial of indictments from one court to another, or from one county to another, the practice is now plain and simple. The Code of Criminal Procedure abolishes all writs and other proceedings for the removal of criminal actions prosecuted by indictment and substintes therefor a direct application to the Supreme Court at Special Term, making provision for the staying of the trial until the application can be heard and decided. (Code Grim. Proc. §§ 343-347.) It likewise abolishes writs of error and certiorari in criminal actions, and provides that the only mode of reviewing a judgment or order in a criminal action or proceeding. or special proceeding of a criminal nature is by appeal. (Id. § 515.) It also provides that an appeal may be taken by the defendant from the judgment of conviction after indictment, and upon the appeal any actual decision of the court in any intermediate order or proceeding forming a ¡Dart of the judgment roll, as prescribed by section 485, may be reviewed. (Id. § 517.)
It will thus be seen that the only review of an intermediate order in an appellate court is by an appeal from the judgment of conviction, and only such intermediate orders are reviewable upon an *712appeal as form a part of the judgment roll, unless there is some other provision of law allowing an appeal.
Section 485 of the Code of Criminal Procedure prescribes what papers shall' constitute the judgment roll, and are specified in the following subdivisions:
“ 1. A copy of the minutes of a challenge interposed by the defendant to a grand juror, and the proceedings and decision thereon ;
“ 2. The indictment and a copy of the minutes of the plea" or demurrer;
“ 3. A copy of the minutes of a challenge which may have been interposed to the panel of the trial jury, or to a juror who participated in the verdict, and the proceedings and decision thereon ;
“ 4. A copy of the minutes of the trial;
“5. A copy of the minutes of the judgment;
“ 6. A copy of the minutes of any proceedings upon a motion either for a new trial or in arrest of judgment;
a 7. The case, if there be one.”
The 8th subdivision refers to capital cases, and has no application to the questions now being considered. While an order to change the place of trial is not specifically named, it would seem to be included as a part of the copy of the minutes and the case.
In the case of People ex rel. Hummel v. Trial Term (184 N. Y. 30), recently decided in the Court of Appeals, it was held that an order denying a motion to quash an indictment upon the ground that the defendant had been compelled tó testify against himself before the grand jury is an intermediate order and becomes a part Of the judgment roll although not specifically named therein, and reviewable upon an appeal from a judgment of conviction, and that, therefore, a writ of prohibition was not a proper remedy for the review of such an order. We think it equally clear that an order refusing to remove the trial of the indictment likewise becomes a part of the judgment roll.
In the Bartel's case an appeal was taken to the Court of Appeals by the defendant from the order of this court affirming the order of the Special Term refusing to change the place of trial, and a *713motion was made in the Court of Appeals by the district attorney to dismiss the appeal to that court, which was granted. (People v. Bartels, 184 N. Y. 570.) The grounds of the decision in that court do not appear. It may well be that it was upon the ground that the order was- discretionary and not appealable to that court, although an examination of the briefs indicates that the sole ground upon which the district attorney relied was that the order of the Special Term was not appealable.
It is contended, however, that this order is not such an intermediate order as is re viewable upon an appeal from the judgment. If that be true, then we are of the opinion that the order is not re viewable upon appeal at all. We know of no authority, and none is called to our attention, which authorizes an independent appeal from an order of this character, but it is said that the right of review is inherent in the Supreme Court. The right of appeal in a criminal case is regulated by statute, and appellate courts have repeatedly refused to entertain appeals by a defendant from orders much more serious in their consequences than an order such as is sought to be reviewed upon this appeal.
In People v. Rutherford (47 App. Div. 209), which was an appeal from an order refusing to quash an indictment, it is said : “ There is no authority for such an appeal. The contention of the appellant that the court has an inherent right to entertain it cannot be entertained. Ho person has a constitutional right to appeal, and no court has an inherent right to entertain an appeal. The right, if it exists, and in all cases where it does exist, is simply the continuance of an existing practice by the Constitution, subject to the legislative right to curtail or abolish it, or it must be founded in some statute.
“ The Code of Criminal Procedure (§ 517) provides in what cases an appeal may be taken and what matter may be reviewed on appeal, and that must be taken as exclusive of all other form of appeal or matter to be reviewed. (People v. Petrea, 30 Hun, 102; affd. in 92 N. Y. 129.)”
And as late as December, 1904, upon an appeal from an order refusing to dismiss an indictment for want of prosecution, the Appellate Division of this court in the first department held that such an appeal would not lie (People v. Martin, No. 1, 99 App. *714Div. 372), Mr. Justice Patterson, speaking for the entire court, saying: c<Appeals in criminal cases may be taken only where expressly allowed by statute, and the only appeal allowed by the Code of Criminal Procedure is from a judgment of conviction, on which appeal an intermediate order or proceeding forming part of the judgment roll may be reviewed. It may not be necessary, therefore, to consider whether or not the court below erred in denying the application; but even if the order were appealable, then it is. plain that on the merits the application was properly denied.”
In People v. Trezza (128 N. Y. 529) the Court of Appeals held that an appeal from an order denying a motion for a new trial after final affirmance of the judgment of conviction would not lie, Judge Andrews saying : “ It will be observed that the section only authorizes a review of intermediate orders and proceedings in connection with an appeal from the judgment, and when they are embodied in the judgment roll. There is no statute provision authorizing an appeal from an order denying a new trial, except as incident to an appeal from the judgment. It is said that the Legislature could not have intended to permit an appeal from such an order in that case, and to deny it where the application for a new trial is made after final judgment of affirmance and denied when it would be too late to make the proceedings a part of the judgment roll. The Legislature seemed to assume that such proceedings would in all cases be taken before an appeal from the judgment. It may be that the failure to provide for an appeal in such amase as this was casus omissus. But the courts must be guided by the law as it is, and cannot give an appeal where none is given by the statute, and there is no statute authorizing an appeal from an order denying a new trial made after the roll is made up and the final affirmance of the judgment.” And again in a later case in the same court (People v. Priori, 163 N. Y. 99, 106), where it was held that an order was rev-iewable in connection with the appeal from the judgment of conviction, Judge Vann very clearly and precisely defines an intermediate order in a criminal case, and when and how re viewable on appeal. He says: “ An intermediate order, within the meaning of section 517, is not confined to orders made between the finding of the indictment and the preparation of the judgment roll in the first instance. The word ‘ intermediate ’ as thus used means between the finding of the *715indictment and the completion of the judgment-roll by the attachment of the case thereto whenever it is filed. As a judgment roll need not be made up at all unless a notice of appeal is served, it is apparent that the object of preparing the roll is to make a record to present to the appellate court. (§ 485.) The judgment is entered upon the record kept by the clerk, and this is sufficient for its enforcement and for all purposes, unless an appeal is taken. Hence, if all the papers which the statute says shall be, a part of the judgment roll are not on file when it is first made up, they become a part of it when filed, and the word ‘ intermediate ’ is limited' only in this way.
“ A motion for a new trial upon newly-discovered evidence may now be made in a capital case at any time before execution, although formerly it was restricted to any time before judgment. (L. 1887, eh. 534, §466.*) Unless it is made and decided in time to include the proceedings in the case, the order denying the motion cannot be reviewed., The right is lost the same as many other rights in legal proceedings are lost, by delay.”
The rule is thus stated in the Cyclopedia of Law and Procedure (12 Cyc. 798): “ At common law a writ of error could never be obtained before judgment, but was granted only to review a final determination of a cause; and this procedure has been generally followed in the States of the United States, by the statutes providing for review. It therefore follows that a writ of error or an appeal will not usually lie, in the absence of a permissive statute, from an interlocutory judgment or order, unless perhaps from an interlocutory judgment or order deciding against defendant on a point which if it had been decided in favor of defendant would have acquitted him.
“ As the.granting of a change of venue is usually discretionary with the trial court, its decision with regard thereto is not ordinarily reviewable upon appeal, and1 when reviewable the appeal must be taken, not from the refusal to change the place of trial, but from, the final judgment.”
Such appeals, if entertained in advance of the judgment, afford means for putting off and delaying the trial, and serve no good pur*716pose, for the rights of the defendant can be fully protected on an appeal from the judgment. A. defendant has a right to a speedy trial, and whether he wishes it or not it is the duty of the prosecuting officer to bring him to trial with all due diligence and dispatch. A person wrongfully accused is entitled to be freed from suspicion and his innocence proclaimed at the earliest possible moment; and it is likewise important that the guilty should be speedily punished. Punishment for crime to be efficacious should he swift and certain, otherwise much of its deterrent effect upon'the criminally inclined is lost. We think it clear from the entire scope of the Code of Criminal Procedure, which regulates the practice in criminal proceedings, that the Legislature did not intend to recede from the former practice in that regard and permit appeals from orders arising in the course of the proceeding antecedent to the trial, except a review upon an appeal from the judgment, and then only such as are specifically named or come within the spirit of the provision of the statute allowing the appeal.
2. But, speaking for myself, I am not persuaded that the discretion of the Special Term was not properly expressed in denying the motion for the removal of the trial of these indictments. Such applications ought not to be granted except upon a clear and convincing state of facts showing that the accused will not be able to obtain a fair and impartial trial in the county in which the crime is charged to have been committed. Formerly it was quite unusual to make such an application until an attempt had been made to secure a.jury in the county where the indictment was pending. As late as the Sharp case in 1886 (People v. Sharp, 5 N. Y. Cr. Rep. 155, 159), where it was claimed that the aldermen of the city of Flew York had been bribed by Sharp in connection with the granting of the street surface railroad franchise, which excited much comment not only in the city of Flew York but elsewhere, upon a motion to remove the trial from that county, which Avas denied, the late Mr. Justice Barrett made this statement: “It may not be necessary to require the experiment of a trial before granting a removal, but it has been very rarely accorded without the preliminary effort to secure a fair and impartial jury. Especially is this desirable in a large city like New York, where the selection is so much greater and more varied than in other and small localities.”
*7171 do not mean to assert that such applications may not properly be made in advance of such an attempt to secure a jury in the county where the indictment is pending. The Code of Criminal Procedure (§§ 344, 345) expressly provides that it may so be done, and the Court of Appeals, in a trenchant opinion by Judge Martin, has given cogent reasons for entertaining such application in advance of the trial (People v. McLaughlin, 150 N. Y. 365, 378-381), but this practice is alluded to to show how convincing a case is required to be made and how sparingly motions of this character have been granted. It is true, as is stated by Judge Martin: c‘That jurors are sometimes prejudiced, and courts may be unconsciously biased to the in jury of one of the parties, must be admitted. Prejudice is often an insuperable barrier to the fair and impartial administration of the law. Its influence is subtle, insidious and often unconsciously warps the judgment and blinds the intelligence of those surrounded by its atmosphere. But its presence can usually be discovered only from the circumstances and conditions which produce it.” And that case is a good illustration of what has been said. It there appeared that one trial had been had and the jury disagreed. It required three weeks to obtain the jury; its deliberations were attended with unusual excitement and passion ; those for acquittal were threatened with imprisonment by their fellows, and after their discharge their intelligence, honesty and motives were assailed in public meetings and by the clergy, the public press joining in the attack upon such jurors and prospective jurors who should so vote upon a subsequent trial. These facts, and many others, as Judge Martin says, were undenied. I do not intend to be understood as saying that every ease for a removal should require facts as strong as these, but it should be established with reasonable certainty that the defendants will probably be unable to obtain a fair and impartial trial, and that should be shown by facts and circumstances which naturally and logically lead to that conclusion.
I have gone over the voluminous papers used upon this motion, consisting of newspaper clippings and affidavits of persons giying their opinion, based largely upon what they have heard, much of it idle talk and extravagant statements. It is true that the matter has excited severe comment and indignant protest as shown by the papers, but so far as these defendants are concerned it does not *718appear that there is a general feeling in the county of personal ill-will against them, nor such general prejudice against them personally as proves the assertion that they will he unable to have a fair trial there. It was urged with great earnestness that they are men of irreproachable character, have always stood high in the community where they live, and we know of nothing to the contrary ; that they are innocent of these crimes and so the law regards them.Conceding all this, how can it be said that they will not be able to obtain a fair and impartial trial in the county in which they live and are known ? I cannot bring myself to the conclusion that in this large county, having a population of several hundred thousand people, where jurors are selected by competent officers with care and due regard to their qualifications, a jury of fair-minded and reasonable men cannot be obtained who will determine the questions submitted to them upon the evidence and upon the evidence alone. However, upon the first ground alone I think the decision must he adverse to the defendants.
The appeal should he dismissed.
Spring, J., concurred.
Order reversed, motion granted and place of trial changed to Wyoming county.
See Code Grim. Proe. (Laws of 1881, chap. 442), § 466, as amd. by Laws of 1882, chap. 65, and Laws of 1887, chap, 534.— [Rep.