
    RYAN v. STATE.
    (No. 4631.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    Rehearing Denied Nov. 28, 1917.)
    Ckiminal Law <⅜»1026 — Judgments Aj?- ' pealable — “Final Judgment.”
    Const, art. 5, § 5, provides that the Court of Criminal Appeals shall have appellate jurisdiction in all criminal cases, with such exceptions and under such regulations as may be prescribed by law. Vernon’s Ann. Code Cr. Proc. 1916, art. 894, provides that a defendant in any criminal action, upon conviction, has the .right of appeal. Article 853 substantially defines a final judgment as one in which there has been a trial settling the controversy against the appellant by his conviction. Held that, while a judgment dismissing a case is in a sense final, the words “final judgment” mean a conviction, so that an appeal will not lie on behalf of accused from a judgment dismissing the case.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    George Ryan was indicted for murder, and the case was removed to a different county. From a judgment dismissing the case, the defendant appeals.
    Appeal dismissed.
    Jas. B. & Chas. J. Stubbs, Mart H. Roy-ston, and Tom Tumley, all of Galveston, and Jos. H. T. Bibb, of Marshall, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted for murder in Harrison county, and on change of venue his case was removed to the district court of Galveston county.

The district attorney filed a motion to dismiss the case, stating his reasons. Opposition was filed thereto by appellant, and the accuracy and sufficiency of the reasons assigned were assailed. On hearing, the court entered a judgment dismissing the case. Exception was reserved, and notice of appeal given. The authority of this court to entertain the appeal is questioned by the Assistant Attorney General. Appellant insists that it is the right and duty of this court to review the grounds of dismissal, and reverse the judgment if the grounds are deemed unsound, basing his claim upon the proposition that the dismissal upon insufficient or illegal grounds would operate to deny him a speedy public trial guaranteed to him by the Constitution. Our Constitution (article 5, § 5) says:

“The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the state in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.”

The necessity and force of regulations prescribed by the Legislature relating to appeals to this court have often been recognized by its decisions. Johnson v. State, 42 Tex. Cr. R. 103, 58 S. W. 69; Barnett v. State, 42 Tex. Cr. R. 302, 62 S. W. 765; Earles v. State, 94 S. W. 467; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967. Similar views have been expressed by the Supreme Court. Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279; S. A. & A. P. Ry. Co. v. Blair, 196 S. W. 502, not yet officially reported. The authority of the Legislature to prescribe rules to be observed in pursuing an appeal is generally recognized. See Ruling Case Law, vol. 6, p. 454, § 451; Andrews v. Swartz, 156 U. S. 272, 15 Sup. Ct. 389, 39 L. Ed. 422; Reetz v. Michigan, 188 U. S. 505, 23 Sup. Ct. 390, 47 L. Ed. 563; Macartney v. Shepherd, 60 Or. 133, 117 Pac. 814, Ann. Cas. 1913D, 1257, and notes.

Onr statute (article 894, C. C. P.) is as follows:

“A defendant in any criminal action, upon conviction, has the right of appeal under the rules hereinafter prescribed.”

And article 952 of the same Code makes a similar provision with reference to habeas corpus proceedings. Construing these statutes, the court has limited its right to entertain appeals to cases that come within the terms of one of these provisions. Eor instance, in Ex parte Wright, 40 Tex. Cr. R. 136, 49 S. W. 104, the right of appeal was denied where the trial court refused to reduce the bail. A similar ruling was had where the trial court decided against the appellant upon the issue of insanity in Darnell v. State, 24 Tex. App. 6, 5 S. W. 522; also on the issue of identity, under article 861, subd. 4, in Washington v. State, 31 Tex. Cr. R. 84, 19 S. W. 900.

In a number of cases the court has held that there must be a final judgment of conviction rendered to authorize this court to consider the case on appeal. See Young v. State, 1 Tex. App. 64; Cox v. State, 34 Tex. Cr. R. 94, 29 S. W. 273; and numerous cases cited at page 870, Yernon’s C. C. P. The term “final judgment” is used, and in a sense a judgment dismissing a case is final. It is not a final judgment of conviction, however, and the term “final judgment,” as used in the decisions, has, we think, reference to that term as defined by article 853 of the Code of Criminal Procedure, which, in substance, defines such a judgment as one in which there has been a trial settling the controversy against the appellant by his conviction. Article 856 provides for a sentence. The entry of the sentence, except in .capital cases, which is governed by a special statute, has been held prerequisite to appeal. Crow v. State, 36 S. W. 93; Foster v. State, 64 Tex. Cr. R. 531,143 S. W. 625; and numerous cases cited in Vernon’s C. C. P. p. 851, under article S56, supra. Article 37 of the Code provides for a dismissal, and lays down the procedure, and our conclusion is that upon the order entered dismissing the case, following this procedure, the right of appeal to this court does not exist. It is not to be doubted that a wrongful dismissal might be oppressive, and that against such wrong the aggrieved party should have an appropriate remedy. Such is the suggestion of Judge Hurt in the opinion of this court in Venters v. State, 18 Tex. App. 209, wherein he says:

“We have made these observations to show that such a procedure, if persisted in, would result in very great oppression to a party charged with an offense; and if a case should arise in which it appeared that such a procedure was had for the purpose of depriving the citizen of ‘a speedy trial,’ we think that the proper relief would be found.”

This relief, however, is not to be attained by an appeal from the order of dismissal.

The appeal is dismissed. 
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