(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.
*340I 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 appeal-able 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
*341The 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 appeal-able as of right.4
Both Blachura and Jackson County Prosecutor *342were appeals from final orders and are not precedentially binding on the question of whether the prosecutor may appeal an interlocutory order,®
II
The reasoning of the prevailing opinion in Blachura focused on the "All final judgments” language5 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
*343The 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 jurisdictions11 of providing separately for prosecutor appeals.
*344The Judicature Act of 1915 could have been *345literally 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 Procedure14 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” *346statutory provision is today read off the statute boohs.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.
*347The 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 *348elimination 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 deñning 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
*349The 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
See Const 1963, art 6, § 4; MCLA 600.310; MSA 27A.310; GCR 1963, 711.4(1).
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.
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.
"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).
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.
"600.3Q8 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 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).
"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 iji the traffic and ordinance division of recorder’s court shall be taken to the circuit courts, upon which further review may be had ofily up.on application for leave to appeal granted by the court *343of appeals.” MCLA 600.308; MSA 27A.308; 1964 PA 281, as amended by 1968 PA 116.
MCLA 600.309; MSA 27A.309.
"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.
“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).
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, pr liberty of a person, pxceRt * * * 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 [19.75]). Still other jurisdictions take an intermediate position (Ga *344Code Ann, § 6-1001a etseq. [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 unconstitutionally 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 *345recommending 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 (Í939).”
"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.)
1917 PA 159. Subparagraphs (a) and (b) of the statute are quoted in fn 3, supra.
1927 PA 175, ch x, § 12; 1929 CL 17366.
1941 PA 132. Subparagraph (c) of the statute is quoted in fn 3, supra.
Contrast Council No 23, Local 1905, AFSCME v Recorder’s Court Judges, 399 Mich 1; 248 NW2d 220 (1976).
".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 withih 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 SU 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.
See fn 17, supra, for text.
".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).
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).
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.
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. New 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).
Const 1963, art 6, § 10.
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.