People v Cooke
Levin, J.The question presented is whether the people may appeal from an order acquitting a defendant on the basis of insufficiency of the evidence entered after a jury has returned a verdict of guilty. We agree with the Court of Appeals that § 12 of the Code of Criminal Procedure1 does not authorize an appeal from an order of acquittal made after the defendant has been put in jeopardy,2 and affirm the decision of the Court of Appeals3 dismissing the people’s appeal.
I
Arlington Cooke was charged with burning insured property.4 At the conclusion of the people’s proofs, Cooke moved for a directed verdict. The judge denied the motion, but suggested that Cooke might renew it after the jury had returned a verdict. The jury found Cooke guilty, and he renewed the motion. The judge granted the motion, finding that there was sufficient evidence of an incendiary burning, but insufficient evidence that Cooke had wilfully burned the property.
II
The constitution secures to a defendant in a criminal case a right of appeal, but does not *425provide for an appeal by the people.5 The people may appeal only to the extent provided by statute.6
Section 308 of the Revised Judicature Act provides that the Court of Appeals has jurisdiction of appeals from all final judgments of a circuit court.7 *426Section 12, ch X, of the Code of Criminal Procedure provides, however, that the people may appeal only from a decision based on the invalidity or construction of a statute or "a decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy”.8 Relying on this Court’s opinions in People v Bla-*427chura, 390 Mich 326; 212 NW2d 182 (1973), and People v Pummer, 399 Mich 326; 249 NW2d 78 (1976), the people contend that § 308 of the Revised Judicature Act provides the people with an appeal of right from all final judgments of the circuit court, and that § 308 supersedes the limitations on prosecutor appeals set forth in the Code of Criminal Procedure. Cooke counters that the Legislature re-enacted the limitations in § 12 of the Code of Criminal Procedure after this Court’s decisions in Blachura and Pummer, and that legislative reaífirmation. of those limitations supersedes those decisions.
A review of the history of these statutory provisions and the case law persuades us that the Court of Appeals correctly dismissed the appeal because the people do not have a right to appeal outside of the express provisions of the Code of Criminal Procedure. By re-enacting the limiting provisions of § 12 of the Code of Criminal Procedure, the Legislature has evinced its intention that appeals by the people be allowed only in the specific instances set forth in the statute. Because this is not one of those instances, the Court of Appeals is without jurisdiction to hear this appeal by the people.
A
The Legislature first provided for access by the people to the appellate process in 1917 by enacting that a "writ of error” might be taken to this Court from certain orders "based upon the invalidity or construction of [a] statute”.9 That language was incorporated into the Code of Criminal Procedure *428in 1927 and amended in 1941 to provide for somewhat broader rights of appeal.10
The 1963 Constitution established the Court of Appeals and provided that "[t]he jurisdiction of the court of appeals shall be provided by law”.11 Pursuant to the constitution, the Legislature enacted § 308 of the Revised Judicature Act.
In Blachura, supra, this Court held that the people could appeal to the Court of Appeals from an order of the trial court granting a defendant in a criminal case a new trial. Noting that § 12 "was last amended in 1942, long before the new constitution established the Court of Appeals and therein directed that its jurisdiction be established by law”, the Court stated that "[i]t cannot logically be said that [§ 12] is the answer to the constitu-tionál directive to establish, by law, jurisdiction of the Court of Appeals”. Id., pp 334-335.12 Because § 12 of the Code of Criminal Procedure was "addressed to old writs of error coming before the *429Supreme Court”, "deal[t] with a now obsolete court structure and us[ed] terms of art alien to modern practitioners”, the Court concluded that § 308 of the Revised Judicature Act had superseded the limiting provisions of § 12 of the Code of Criminal Procedure. Id., pp 335, 337.13
This Court again addressed the scope of the people’s right to appeal in People v Pummer, supra, p 331,14 and said that "in light of Blachura 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” § 308 of the Revised Judicature Act and rules formulated by this Court.15
B
After Blachura and Pummer, the Legislature, in 1977, revised and re-enacted § 12 of the Code of Criminal Procedure.16 By substituting "[a]n appeal” for "[a] writ of error” and deleting "in said state direct to the supreme court thereof’ following "court of record” in the introductory paragraph, the amendment eliminated the outdated language discussed in Blachura. The statute no longer dealt with an obsolete court structure, and *430it employed only those terms of art familiar to current practitioners.
The Legislature’s intent that appeals by the people be governed by the specific provisions of § 12 of the Code of Criminal Procedure rather than by § 308 of the Revised Judicature Act is also demonstrated by its subsequent amendment, in 1980, of § 3 of the same part of the Code of Criminal Procedure.17 Before the amendments to § 12, § 3 provided that "[w]rits of error in criminal cases shall issue only in the discretion of the supreme court or any justice thereof, on proper application therefor”. 1980 PA 506 amended § 3 to begin ”[sjubject to the limitations imposed by section 12 of this chapter, an aggrieved party shall have a right of appeal from a final judgment or trial order as follows”. (Emphasis supplied.) Section 3 then goes on to provide the time period for filing a claim of appeal in criminal cases, thus establishing necessary "details” of the appellate process.
The people contend that the Legislature inadvertently revised § 3 and § 12 without being aware of the Blachura and Pummer decisions. It is of no significance, however, whether the Legislature was or was not aware of this Court’s decisions in Blachura or Pummer. The Legislature, not this Court, has the power under the constitution to prescribe the jurisdiction of the Court of Appeals. By re-enacting § 12 and revising § 3, the Legislature indicated its intention that there be the limitations on the people’s right to appeal set forth in § 12. Neither the Legislature’s ignorance of a contrary construction by this Court of § 308 and § 12 nor the 1981 amendment of § 30818 gainsays the *431clear legislative statement that § 12 is viable. It is no longer open to this Court to say that the Legislature intended that § 308 supersede § 12. Section 12 must be given meaning and be enforced.
C
The people’s argument that § 12 does not limit the people’s right to appeal because it does not contain express words of limitation is not persuasive. First, § 3 refers to the "limitations imposed by section 12”, indicating that the Legislature intended the circumstances set forth in § 12 to be exclusive. Second, the language of § 12 is almost identical to that of the Federal Criminal Appeals Act before Congress amended that act in 1970;19 *432the United States Supreme Court held that the earlier version of the act precluded the government from appealing under circumstances virtually identical to those of the instant case.20 United States v Sisson, 399 US 267; 90 S Ct 2117; 26 L Ed 2d 608 (1970). Third, and perhaps most important, if the people’s argument prevails, § 12 would be rendered meaningless.21
*433D
Read as a statute providing for appeal only in limited circumstances, § 12 does not authorize an appeal by the people in this case. The only provision of § 12 that might apply to the instant appeal is the provision that allows appeals "from a decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy”. Because the defendant was put in jeopardy in this case,22 § 12 does not permit the people’s appeal.
Blachura, Pummer, and Jackson County Prosecutor, to the extent that they can be read as authorizing an appeal by the people except as provided for in § 12, shall be deemed to be overruled.
We affirm.
Williams, C.J., and Kavanagh, Ryan, Brick-ley, and Cavanagh, JJ., concurred with Levin, J.People v Robinson
Levin, J.In People v Cooke, ante, p 424, this Court held that the people may only appeal subject to the limitations of § 12 of Chapter X of the Code of Criminal Procedure.1 That decision governs decision in the instant case.
I
Jerry Robinson was charged with delivery of LSD.2 He waived a jury trial. The people presented their proofs. Robinson chose to present none, and the proofs were closed. Finding that Robinson had *434been entrapped, the judge ordered the case dismissed and Robinson discharged. The Court of Appeals dismissed the people’s appeal on jurisdictional grounds, holding that the1 people may only appeal in the limited circumstances enumerated in § 12 and that § 12 does not authorize an appeal from an acquittal after jeopardy has attached.3 118 Mich App 220; 324 NW2d 795 (1982).
II
This Court addressed the question whether a prosecutor has a right to appeal outside of the express provisions of § 12 in People v Cooke, supra. We held that the people may appeal only in the circumstances provided in § 12. Applying that holding to this case, we conclude that the Court of Appeals was correct in dismissing the prosecutor’s appeal. Section 12 does not authorize an appeal from an acquittal after jeopardy has attached.4 Because we affirm the Court of Appeals on statutory grounds, we need not reach the double jeopardy question discussed in the briefs.
Affirmed.
Williams, C.J., and Kavanagh, Ryan, Brick-ley, and Cavanagh, JJ., concurred with Levin, J.MCL 770.12; MSA 28.1109. For the language of that provision, see fn 8.
Cooke was put in jeopardy when the jury was sworn. Crist v Bretz, 437 US 28, 38; 98 S Ct 2156; 57 L Ed 2d 24 (1978); United States v Martin Linen Supply Co, 430 US 564, 569; 97 S Ct 1349; 51 L Ed 2d 642 (1977).
People v Cooke, 113 Mich App 272; 317 NW2d 594 (1982).
MCL 750.75; MSA 28.270.
Const 1963, art 1, § 20.
People v Ballots, 252 Mich 282, 283; 233 NW 229 (1930). See also Arizona v Manypenny, 451 US 232, 245-246; 101 S Ct 1657; 68 L Ed 2d 58 (1981) ("' "[I]n the federal jurisprudence, at least, appeals by the Government in criminal cases are something unusual, exceptional, not favored.” ’ * * * This federal policy has deep roots in the common law, for it was generally understood, at least in this country, that the sovereign had no right to appeal an adverse criminal judgment unless expressly authorized by statute to do so. Accordingly, from the early days of the Republic, most state courts refused to consider appeals by prosecutors who lacked the requisite statutory authority.”) United States v Wilson, 420 US 332, 336; 95 S Ct 1013; 43 L Ed 2d 232 (1975) ("This Court early held that the Government could not take an appeal in a criminal case without express statutory authority. United States v Sanges, 144 US 310, 318, 322-323; 12 S Ct 609; 36 L Ed 445 (1892). Not reaching the underlying constitutional issue, the Court held only that the general appeals provisions of the Judiciary Act of 1891, 26 Stat 827, 828, were not sufficiently explicit to overcome the common-law rule that the State could not sue out a writ of error in a criminal case unless the legislature had expressly granted that right.”)
At the time People v Blachura, 390 Mich 326; 212 NW2d 182 (1973) and People v Pummer, 399 Mich 326; 249 NW2d 78 (1976) were decided, § 308 of the Revised Judicature Act provided as follows:
"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.
"(2) Such other judgments or interlocutory orders as the supreme court may by rule determine.” MCL 600.308; MSA 27A.308.
In 1981, § 308 was amended to read as follows:
"Sec. 308. (1) The court of appeals has jurisdiction on appeals from the following orders and judgments which shall be appealable as a matter of right:
"(a) All final judgments from the circuit court, court of claims, and recorder’s court, except judgments on ordinance violations in the traffic and ordinance division of recorder’s court.
"(b) Those orders of the probate court from which an appeal as of right may be taken under section 861.
"(2) The court of appeals has jurisdiction on appeal from the *426following orders and judgments which shall be reviewable only upon application for leave to appeal granted by the court of appeals:
"(a) A final judgment or order made by the circuit court under any of the following circumstances:
"(i) In an appeal from an order, sentence, or judgment of the probate court under section 863(1) and (2).
"(ii) In an appeal from a final judgment or order of the district court appealed to the circuit court under section 8342.
"(¡ii) An appeal from a final judgment or order of a municipal court,
"(iv) In an appeal from an ordinance violation conviction in the traffic and ordinance division of recorder’s court of the city of Detroit if the conviction occurred before September 1,1981.
"(b) An order, sentence, or judgment of the probate court if the probate court certifies the issue or issues under section 863(3).
"(c) A final judgment or order made by the recorder’s court of the city of Detroit in an appeal from the district court in the thirty-sixth district pursuant to section 8342(2).
"(d) Such other judgments or interlocutory orders as the supreme court may by rule determine.” 1981 PA 206.
Section 12 of Chapter X of the Code of Criminal Procedure provides as follows:
"(1) An appeal may be taken by and on behalf of the people of this state from a court of record in all criminal cases, in any of the following instances:
“(a) From a decision or judgment quashing or setting aside an indictment, information, or other charging instrument, or a count thereof, where that decision or judgment is based upon the invalidity or construction of the statute upon which the indictment, information, or other charging instrument is founded.
"(b) From a decision arresting a judgment of conviction or directing a judgment of acquittal for insufficiency of the indictment, information, or other charging instrument, where the decision is based upon the invalidity or construction of the statute upon which the indictment, information, or other charging instrument is founded.
"(c) From a decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy, or from another order of the court relative to admission of evidence or proceedings had or made before the defendant is put in jeopardy.
"(2) The right of the defendant to bail upon appeal under this section shall be governed by section 9a of this chapter and section 7 of chapter 5.” (Emphasis added.) MCL 770.12; MSA 28.1109.
1917 PA 159.
1941 PA 132, MCL 770.12; MSA 28.1109.
Const 1963, art 6, § 10.
At the time of the Blachura decision, § 12 read as follows:
"Sec. 12. 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.” (Emphasis added.)
Three justices disagreed with the majority’s conclusion.
The Court also dealt with the prosecutor’s right to appeal in Jackson County Prosecutor v Court of Appeals, 394 Mich 527; 232 NW2d 172 (1975). In a memorandum decision, the Court held that a pretrial order quashing an information on grounds that the statute was invalid was appealable as of right to the Court of Appeals under § 309 of the Revised Judicature Act, MCL 600.309; MSA 27A.309. Because the appeal was specifically permitted by § 12, MCL 770.12(l)(a); MSA 28.1109(l)(a), it presented no conflict with that provision.
Two justices dissented, arguing that § 12 governed appeals by the people.
1977 PA 34.
MCL 770.3; MSA 28.1100.
1981 PA 206. See fn 7 for text.
Before its revision by PL 91-644 in 1971, 18 USC 3731 provided as follows:
"§ 3731. Appeal by United States.
"An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
"From a decision or judgment setting aside, or dismissing 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 the indictment or information is founded.
"From a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded.
"From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.
"An appeal may be taken by and on behalf of the United States from the district courts to a court of appeals in all criminal cases, in the following instances:
"From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof except where a direct appeal to the Supreme Court of the United States is provided by this section.
"From a decision arresting a judgment of conviction except where a direct appeal to the Supreme Court of the United States is provided by this section.
"From an order, granting a motion for return of seized property or *432a motion to suppress evidence, made before the trial of a person charged with a violation of any law of the United States, if the United States attorney certifies to the judge who granted such motion that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of the charge pending against the defendant.
"The appeal in all such cases shall be taken within thirty days after the decision or judgment has been rendered and shall be diligently prosecuted.
"Pending the prosecution and determination of the appeal in the foregoing instances, the defendant shall be released in accordance with chapter 207 of this title.
"If an appeal shall be taken, pursuant to this section, to the Supreme Court of the United States which, in the opinion of that Court, should have been taken to a court of appeals, the Supreme Court shall remand the case to the court of appeals, which shall then have jurisdiction to hear and determine the same as if the appeal had been taken to that court in the first instance.
"If an appeal shall be taken pursuant to this section to any court of appeals which, in the opinion of such court, should have been taken directly to the Supreme Court of the United States, such court shall certify the case to the Supreme Court of the United States, which shall thereupon have jurisdiction to hear and determine the case to the same extent as if an appeal had been taken directly to that Court.”
In 1971, Congress removed all statutory barriers to appeals by the government in federal criminal cases. The Federal Criminal Appeals Act now allows appeals whenever constitutionally permitted. 18 USC 3731. The project of the American Bar Association on Standards for Criminal Justice has recommended that the government be allowed to appeal only on grounds similar to those allowed by § 12. ABA Standards for Criminal Justice, Criminal Appeals, Standard 21-1.4, pp 21.17 to 21.20. The ABA standards would not permit appeals under the instant circumstances of a post-guilty-verdict directed verdict of acquittal. Id., pp 21.19 to 21.20.
The construction of § 12 in this opinion will not render § 308 of the Revised Judicature Act meaningless because § 308 unquestionably governs appeals in civil cases.
See fn 2.
MCL 770.12; MSA 28.1109.
MCL 333.7401(2)(b); MSA 14.15(7401)(2)(b).
In a bench trial, jeopardy attaches at the time the prosecution calls its first witness. Serfass v United States, 420 US 377; 95 S Ct 1055; 43 L Ed 2d 265 (1975).
The court rules and case law generally require that "pretrial motions” be heard and decided before the trial commences. A prosecutor may properly insist thereon to preserve his right of appeal from an adverse ruling.