(dissenting):
It is with some diffidence that I undertake to state the reasons which impel me to dissent from the majority of the court. The elaborate opinion prepared by my brother Goddard and concuri’ed in by the chief justice is not without support fi'om other judicial decisioais. Nevertheless, I am firmly convinced that reason, logic, and the approved rules of statutory coaistruction, if not the greater number of precedents, require that the motion to quash the wa-it of error in this cause should be denied. In passing upon the motion to quash, the following is the only question to be considered and determined:
Is the supreme court vested with jurisdiction by writ of *249error in behalf of the people, as well as the accused, to review judgments of the court of appeals in cases of this kind?
The majority opinion assumes that the question whether the supreme court has jurisdiction to revive a judgment rendered by the court of appeals in a criminal case must be determined by the construction to be given to the act creating the latter court. In my opinion, the question depends rather upon the true interpretation of that act, there being no room for construction as to those sections by which the question must be determined.
The members of the court are agreed that the judgment of the district court in this cause might have been taken for review to the supreme court in the first instance, section 1 of the court of appeals act being applicable to civil cases onty. I readily agree that unless section 1 be limited to civil cases, there would be no court of this state by which a person convicted of a capital crime might have the record of such conviction reviewed. In view of such consequences any mind animated by a sense of justice and humanity is led to seek some rule of construction to prevent the section from having such effect. The maxim, nosoitur a sooiis, furnishes the key to such construction. He is known by his companions. That the section was intended to apply to civil cases only, is manifested by the associated words, “ unless the judgment, or in replevin, the value found, exceeds two thousand five hundred dollars exclusive of costs.” These words are peculiarly applicable to civil, but not to criminal cases. So it appears that an approved maxim of statutory construction, as well as an almost overwhelming necessity, approves the limiting of section 1 to civil cases. But, as will presently appear, the construction given to sections 4 and 15 by the majority opinion is not sustained by any such rule, and certainly' not by any such necessity.
What does the court of appeals act provide in reference to a réview of judgments in criminal cases ? It is conceded that the court of appeals is vested with jurisdiction to review judgments in criminal eases, not capital. But by the third: *250clause of section 4 it is expressly provided that the jurisdiction of the court of appeals shall not be final in criminal cases. No exception is made. The statute does not say that the judgment of the court of appeals shall not be final in cases wherein the judgment is against the accused; nor is there any room for inference that it was intended that such judgment should be final in case it should be against the people. The language is, “ It (the court of appeals) shall have jurisdiction, not final, * * * in criminal cases.” No limitation or qualification whatever.
From the language of section 3 we are led to expect that provision will be found in the act for the review of judgments rendered by the court of appeals in criminal cases, since the jurisdiction of that court is expressly declared not to be final in such cases. Turning to section 15, we find that such provision has been made. Bearing in mind that the judgment of the district court in this cause might have been reviewed by the supreme court in the first instance, the first clause of section 15 is very plain :
“ Writs of error from, or appeals to, the supreme court, shall lie to review every final judgment of the court of appeals in cases which, under this act, might have been taken to the supreme court in the first instance.”
There is nothing in this language from which it can be reasonably inferred that the review by the supreme court is to be confined to cases wherein the judgment of the court of appeals is against the accused ; nor is there anything to indicate that such review does not extend to cases in which the judgment of the court of appeals is against the people. On the contrary, the language is clear, unambiguous, unequivocal, and positive that the writ shall lie to review “ every final judgment of the court of appeals in cases which under this act might have been taken to the supreme court in the first instance.”
The last clause of section 15 provides that, “ Appeals shall be perfected and writ of error made a supersedeas in the same manner and under the same conditions as in cases *251brought from other courts.” There is nothing in this language to indicate that writs of error to the court of appeals in criminal cases are confined to such judgments as are against the accused. The language of the last clause of section 15 would have been just as appropriate and just as necessary, if in the first clause of the section it had been provided in still more express terms that a writ of error should lie to review judgments adverse to the people in criminal cases.
Thus it appears that in order to deny the right of the state to review a judgment of the court of appeals in a criminal case, it .is necessary to give a forced construction to section 4 as well as section 15. Section 4 must be made to read: “ It (the court of appeals) shall have jurisdiction not final * * * in criminal cases ” wherein the judgment of the criminal court is against the accused. Section 15 must be made to read: “ Writs of error from, or appeals to, the supreme court, shall lie to review every final judgment of the court of appeals in cases which, under this act, might have been taken for review to the supreme court in the first instance,” except in criminal cases wherein-the judgment of the court of appeals is in favor of the accused. What reason or rule of construction can be found, requiring the addition of such words to the statute ?
It is easy to understand how the rule has obtained that a judgment of acquittal in a criminal case is not subject to' review in error at the suit of the state. The defendant having been put in jeopardy and acquitted, cannot, under the constitution, be tried again for the same offense; and, since a review of the record of acquittal would be unavailing to the state, appellate courts have refused to allow a writ of error in such cases, even when the general language of the statute has been broad enough to sustain the jurisdiction. A very rigid rule of construction might well be adopted by the courts under such circumstances. But where there has been no jeopardy the reason for the rule denying the writ of error to the state does not apply. Oessante ratione, cessat lex. The reason ceasing, the rule ceases.
*252In this case the defendants were not acquitted. On the contrary, they were adjudged guilty by the trial court. They themselves sought a review of their cause by the appellate judiciary of the state. Two avenues of appeal were open to them, but by the positive terms of the statute, both avenues led to the supreme court as the final arbiter to determine the errors of which they complained. Thejr were bound to know that the court of appeals was not vested with final jurisdiction of their cause; they were bound to take notice that their cause was subject to review by the supreme court either before or after the court of appeals should have passed upon it. Having voluntarily invoked the jurisdiction of the appellate judiciary for the purpose of having questions of law investigated and settled, why should they, any more than the state, be permitted to arrest the investigation upon the opinion of an intermediate appellate tribunal, the jurisdiction of which is expressly declared not to be final in such cases ? The decision of the court of appeals cannot, under the statute, be regarded as settling the law of the case, its jurisdiction not being final.
"'"’"The state is not asking to put the defendants again in jeopardy. Having once.put them in jeopardy and convicted them, all the state now asks is that such conviction shall stand, and that the original judgment of the trial court shall be enforced, unless it shall be found in pursuance of such a course of review as the statute provides that there was error in the record of such conviction.
Speaking upon this subject, an eminent author upon criminal law says:
“ In England, writs of error, the practical object of which is generally to bring whatever appears of record under the review of a higher tribunal, seem to be allowable to the crown in criminal causes; but the courts of most of our states refuse them, and refuse the right of appeal to the state or commonwealth, except where expressly authorized by statute, as in some states they are. In Maryland, the state may have a writ of error at common law to reverse a judgment given on *253demurrer in favor of a defendant. And in some other states questions of law may, without specific statutory direction, be reviewed by this proceeding, or' by appeal, on prajmr of the state. The question is not free from difficulty; but probably some judges have refused the writ to the state, from riot distinguishing sufficiently between cases in which the rehearing would violate the constitution, and cases in which the prosecuting power has the same inherent right to a rehearing as a plaintiff has in a civil suit.” 1 Bishop on Criminal Law, § 1024.
As intimated at the outset, judicial precedents are not in accord upon questions like the one at bar. No case precisely analogous to this has been presented. The authorities cited below, however, very clearly sustain the position that the writ of error lies at the suit of the state to review questions of law; and, further, that where in a criminal prosecution error of law has occurred after conviction, the state may bring error for the purpose of reviewing and reversing the judgment, that thereby the penalty of the law may be enforced.
In State v. Buchanan, 9 Md. 270, the point was directly held that a writ of error lies at the instance of the state in a criminal prosecution.
In Commonwealth v. Taylor, 5 Binney (Pa.), 277, the court of quarter sessions having arrested judgment after conviction of a misdemeanor, the supreme court entertained a writ of error, reviewed and reversed the judgment of arrest, and “ directed that the record should be remitted to the quarter sessions, that they might proceed to give judgment against the defendant.”
In State v. Norvell, 2 Yerger (Tenn.), 24, the supreme court expressed the opinion in a case where there had been a conviction for manslaughter and the judgment had been improperly arrested and the prisoner discharged, that such judgment of discharge might be reversed on error and judgment on the conviction rendered against the defendant.
See, also, Commonwealth v. Anthony, 2 Metc. (Ky.) 399; *254State v. Ross, 14 La. Ann. 364; 11 Am. & Eng. Ency. of Law, 948, and notes.
It is no purpose of mine to approve the policy of providing for a review of judgments of the court of appeals by writ of error in cases of this kind. It might be better if the statute were otherwise ; nevertheless, its plain provisions should be upheld until modified.
According to a wise principle of the criminal law, the accused is entitled to the benefit of every reasonable doubt as to any question of fact necessary or essential to sustain a conviction against him. To give due effect to this principle, every question of the law applicable to the proceedings whereby the guilt or innocence of the accused is to be ascertained should be considered and passed upon with due regard to his security from wrongful conviction — for example, questions arising upon the introduction of testimony, the charge of the court, and the like. If these requirements are not observed, an appellate court will reverse the case. But when after legal arraignment and fair trial, an accused person has been found guilty, the interests of the state should certainly be regarded as equal to those of the convict in construing the law provided for the punishment of his crime. In my opinion, the true rule in criminal jurisprudence is: Before and during trial — strict construction, to the end that the innocent may not be convicted; after just and lawful conviction— liberal construction, to the end that punishment may be inflicted, the majesty of the law upheld, and society protected.
Dismissed.