(concurring specially).
CONCURRENCE
I agree with the decision of the Court, but I wish to identify some factual and legal points for further judicial consideration.
FACTS
A company known as the- Hinderaker Company, Inc., was located in Astoria, South Dakota, and was a corporation operating a grain elevator. At the very latest, in August of 1972, this corporation determined a shortage of flax in excess of 20,000 bushels. Defendant Texley was not only the manager, but the only full-time employee during this time. In April of 1973, the Hinderaker Company, Inc., filed a civil action against the defendant alleging “fraud, misappropriation, and concealment.” Testimony elicited by the trial judge himself established that the principal officer of this company could only account for this shortage of grain by a major theft or some scheme to convert or embezzle it. Additionally, in 1972 the defendant was relieved of his employment and subsequently the Commodity Credit Corporation requested delivery of all stored flax in the elevator. Delivery was made and a shortage of some $58,000 was discovered in flax deliveries. It appeared to the trial court that the Hinde-raker Company, Inc., had a definite shortage of approximately $58,000 in its flax account and during the period of time when the defendant Texley was the only employee.
The civil action, as of the filing of the briefs herein, still pends.
The crime alleged in the information, namely embezzlement, covered a period from January, 1969, to May, 1972.
The trial court believed that it was absolutely clear from the record that the Hinde-raker Company, Inc., in April of 1973, was aware of the grain shortage and suspected defendant of converting this grain.
The facts, cited above, appear to be un-controverted.
The circuit court ruled that these facts, as a matter of law, constituted discovery for *875purposes of SDCL 23-8-4. The state urges upon this Court that this was a factual determination for a jury and no£ a question of law for the trial judge to decide. Under Federal Practice and Procedure, Wright and Miller, § 1277, Bormann v. Beckman, 73 N.D. 720, 19 N.W.2d 455 (1945), Grigsby v. Sterling Drug, Inc., D.C., 428 F.Supp. 242, aff. 177 U.S.App.D.C. 270, 543 F.2d 417 (1976) it is generally held that a statute of limitations defense is a question of law when there is no dispute in evidence as to facts.
Nonetheless, for reasons assigned below, this Court cannot affirm the trial judge or reverse his decision with respect to this aspect of the case.
The defendant in his brief urges that this Court cannot entertain this appeal as there is no statutory authority for the state to appeal.
ISSUES
1. Is this Court without jurisdiction to hear this appeal? 2. Did the trial court properly decide as a matter of law that the statute of limitations had run?
DECISION
Our jurisdiction to entertain appeals is limited by statute. State v. Devine, 257 N.W.2d 606.
It is for the legislature to expand the right to appeal. State v. Stunkard, 28 S.D. 311, 133 N.W. 253.
The right to a criminal appeal is purely statutory and does not exist in the absence of a statute. State v. Wagner, 86 S.D. 382, 196 N.W.2d 360.
Article V, Section 5, of the South Dakota Constitution gives the legislature the power to define the appellate jurisdiction of the Supreme Court. The Constitution provides: “The Supreme Court shall have appellate jurisdiction as may be provided by the legislature . . . The legislature has defined the State of South Dakota’s right of criminal appeal. SDCL 23-51-2.
In State v. Nuwi Nini, 262 N.W.2d 758, this Court reiterated its fundamental appellate jurisdictional principle that if there is no statutory authorization, there is no right to appeal.
This Court is dependent upon the legislature to expand its jurisdiction, if in the legislature’s determination, broader criminal appeal jurisdiction is desirable.
Since the Nuwi Nini decision in 1978, the legislature has taken no action to broaden the Supreme Court’s jurisdiction. Therefore, this Court should now uphold the rules set down by that case.
The State of South Dakota simply has no right to appeal under the factual showing and the record in this case. In this state, the right of the state to appeal is severely restricted. The legislature has made it so. The state in the instant case has not structured its appeal within the framework of our state statutes and legislative intent.
This Court having no jurisdiction, we cannot address ourselves to the question which the state advocates: that the trial judge should not have ruled, as a matter of law, that discovery of the crimes took place prior to May 23,1974, thusly dismissing the information on the premise that the statute of limitations had run. SDCL 23-8-4.
I would therefore dismiss the state’s appeal.