State v. Wright

Deemer, J.

(dissenting). Regretting that I cannot agree with the majority, for I believe that the legislature ought to provide for an appeal from such a. ruling as is here involved, I am nevertheless constrained to file this dissent from what I think is a plainly erroneous construction of the statute. The majority correctly say that the right of appeal is purely statutory, and that if the statute does not confer the right it does not exist. I would Only add this general principle, that, when a statute does give the right of appeal from certain orders in a criminal case, appeals from all other orders are by, necessary implication excluded. This is simply an application of the maxim, “Expressio unius est *625exclusio aliermsNow, Code, section 5448, provides that “the mode of reviewing in the supreme court any judgment, action or decision of the district court in a criminal case is by appeal. An appeal. can only be taken from the final judgment and within one year thereafter. Either the defendant or state may appeal.” It will be noticed that the statute covers any judgment, action, or decision in a criminal case, and then provides that an appeal earn only be taken from the final judgment. That the order in question was an action or decision in a criminal case can hardly be doubted. To avoid the effect of this conclusion, the majority say that the procedure was not a part of the criminal case, but a provisional order, from which an appeal will lie, because of the section of the statute relating to appeals in civil cases. This, to my mind, is the fundamental error of the opinion. It is an order or decision in a criminal case, and the section of the statute under which the order was made (section 254) gives no right of appeal. Blair v. Blair, 74 Iowa, 311, is a civil case, and the provisional order there made was appeal-able by the express terms of the statute. See Code, section 4101. State v. Jones, 64 Iowa, 358, simply holds that a petition for rehearing may be filed in a criminal case after an opinion has been filed in this court. The decision was based on sections 3201, 3202, Code 1873,. which were general in terms, and related to procedure in this court. Nothing was said regarding petitions for rehearing in the sections of the statutes relating to criminal appeals, and the general statutes relating to practice in this court were held applicable to criminal appeals. The case does not, in my judgment, give any support to the conclusions of the majority. Here we have a statute giving the right of appeal from judgments in criminal cases, of necessity, excluding the right in all other matters. ’ Eor obvious reasons, the statutes relating to the right of appeal in civil eases cannot apply. State v. Waddle and State v. Robbins, cited by the majority, *626are-not in point. The Waddle Gase arose under the Code of 1873, and the question was not raised in the Bobbins Case Code 1873, sections 4520, 4522, expressly gave the right of appeal 'from any action or decision in a criminal case, but provided that no appeal could be taken until after judgment. Under these statutes, it was expressly held that the sections of the Code relating, to criminal appeals- did not apply, and that no appeal could be taken in criminal cases from rulings on a demurrer. State v. Swearengen, 43 Iowa, 336; State v. Hoffman, 67 Iowa, 281. In the former case it is said: “It is expressly provided an appeal may be taken from an intermediate order or "decision in a civil action, but, there being no such provision as to a criminal action, an appeal •therein can only be taken from the judgment which is thefínál adjudication.” The appeal in the instant case is not from the final judgment, but is from an action or decision in a criminal case based on the statute providing for the allowance of a transcript at the expense of the county, from which not right of appeal is either recognized or provided. To sustain the conclusion reached by the majority, the preposition “from” should be construed in its primary sense, as relating to time, and not in its secondary, as relating to cause or instrumentality. That it is not based on this reasoning is evidence that it cannot be. I am ready to agree that the word, ordinarily, relates to time, but it may also be •used 'in its secondary sense. That it relates to a cause or instrumentality is, it seems to me, clear from the context. The time within which the appeal may be taken is fixed by the last clause of the sentence. The first part relates to subject-matter and the second to time. Statutes often use the word in connection with robbery, as robbery “from” the person. When so used, it does not mean after. It has no reference to time, when SO' used. The change’in the word from “after” to “from” in the new Code is significant. In the Code of 1873, “after” referred to time; in the new Code, “from” refers to subject-matter.

*627It may be that, on appeal from a final judgment, intermediate orders may be considered on appeal. Indeed, I think we ought to so hold. But, as already- suggested, this is not an appeal from a final judgment. The appeal is from the decision of the district court in a criminal case, independent of the main appeal from the final judgment. And as the appeal can only be taken from the judgment there is nothing to consider, for the statute under which the order was made, does not provide, for an appeal. As I view it, the majority are unduly impressed with the idea that an appeal should be allowed from such order, and that to deny it would jeopardize the rights of one accused of crime: While there is some potency in the thought that an appeal might well be provided in such cases, it, furnishes no reason for allowing it, when the legislature for some reason saw fit to deny the right of appeal from an order refusing the ordering of a transcript at the expense of the county. The whole matter seems to be left to the sound discretion, of the trial court, and we have no right to assume that this discretion will be illegally or unjustly abused. I would dismiss the appeal.

Ladd, J., concurs in this dissent.