
    The State v. Daugherty.
    “Where the Constitution contains a grant of jurisdiction, “with such exceptions and under such regulations as the Legislature shall make,” whether the grant remains dormant until a rule is prescribed for its exercise, guere. But, however that may be, it is well settled that in such cases affirmative legislation, covering part of the ground included in the grant, is in effect a negative upon the exercise of any jurisdiction in that behalf not included in the legislative grant or regulation. (Note 1.)
    ‘Therefore, the Constitution of the State having conferred upon the Supreme Court appellate jurisdiction in criminal cases, “ with such exceptions and under such regulations as the Legislature shall make,” and the Legislature having only provided “ that the defendant to any indictment or prosecution for any criminal offense in the District Court of this State shall have the right of appeal to the Supreme Court, it follows that the State cannot appeal in criminal cases.
    The act of December 22, 1836, which authorized the judges of the District Courts to certify novel and difficult questions to the Supreme Court for decision was repealed by the act of the 13th of May, 1816, to regulate proceedings in the District Courts.
    Appeal from Henderson. At the May Term, 184S, of the District Court of tlie county of Henderson a hill of indictment was found against the said defendant for gaming. At the May Term, 1849, of said court, when said cause was called for trial, the defendant filed a motion to quash the venire facias •and hill of indictment, on the ground that said writ by which the jurors were summoned who found said indictment liad no seal attached thereto according to law, and that said writ was not signed and tested by the clerk of said court; which motion was sustained by the court, the special venire quashed, and the judgment of the court rendered that the defendant go lienee without day. Whereupon the district attorney gave notice of appeal and appealed to the Supreme Court, and the court ordered the same to be certified to the Supreme Court as a novel question for their decision therein.
    Hamilton, for appellant.
    
      Hyde and Jennings, for appellee.
    I. After the motion was sustained and the defendant adjudged to go hence "without day the court had no further power in the premises, and could not reserve the same for the consideration of the Supreme Court. The act of December 22, 1836, giving this power was repealed by the act of the 13th May, 1846. Nor lias the State the right of appeal in criminal cases; there is ño statute giving such right; and see The State v. Soloman, (6 Yerg. K., 340,) and ■the authorities there referred to.
    II. The indictment should have been quashed, for the reason that the venire _ facias was void, it having no seal thereto. The 8th section of the act of the lltli May, 1S46, describes the seal to be procured for the clerk of the District ■Court, the impression of which seal must he attached to all writs and process, except subpoenas, issuing from said court; and until such seal be procured the seal formerly in use or a private seal may he used. In this case the clerk was not provided with a seal, under which circumstances liis former seal, if lie bad one, or his private seal, was as essential as the roper seal would have been if •one had been provided; and there being neither attached to said venire facias, it must be void and all the proceedings thereon.
   Hbmphilu, Oh. J.

The only question in this ease is whether the State has-the right of appeal from a judgment of the District Court in a criminal case in favor of the defendant.

Tlie Constitution vests in the Supreme Court appellate jurisdiction co-extensive with tlie limits of the State, “but in criminal cases and in appeals from interlocutory judgments, with such exceptions and under such regulations as tlie Legislature shall make.” It will be perceived that the grant of jurisdiction over criminal cases and interlocutory judgments is not complete and unqualified, hut is subject to such regulations and exceptions as may be made by law.

Whether a grant made in such terms remains dormant until a rule is prescribed for its exercise does not appear to be well settled in the decisions of the Supreme Court of the United States on a similar clause in their Constitution ; at least their construction has not been uniform. Appellate jurisdiction is given to the Supreme Court of the Union, both as to law and fact, with such exceptions and under such regulations as Congress shall make. In the first case requiring an exposition of the provision (Wiscart v. Dauchy, 3 Dall. R., 320) it was held that the jurisdiction of the court could not be exercised unless Congress had provided a rule to regulate the proceedings. But in the United States v. Moore (3 Cr. R., 159) and Durousseau et al. v. United States (6 Cr. R., 307) the position was assumed as the true one that if the j udieial act had created tlie Supreme Court without defining or limiting its jurisdiction, it must have been considered as possessing all the jurisdiction which the Constitution assigned to it, and Congress, in omitting to exercise the right of excepting from its constitutional [lowers, would necessarily have left those powers undiminished; that the appellate powers are not given by the judicial act, but by the-Constitution. In Barry v. Mercein et al. (5 How. U. S. R., 119) the court adopted tlie original construction of the clause, and laid the rule down broadly that the court possesses no appellate power in any case unless conferred upon it by act of Congress; nor can it, when conferred, be exercised in any other form or by aiiy 'other mode than that prescribed by law. (Ewing v. Kinnard, 2 Tex. R., 163; Baillieu v. Robinson, Id., 160; Dow et al. v. Hotchkiss, 2 Tex. R., 471.) It will not be necessary to attempt to eviscerate from these really or apparently conflicting decisions the true rule of construction. In all of them it -was held, in effect, that when the Congress had prescribed the rule, the courts could not depart from it, (3 Dall. R., 326;) that the Legislature of the Union in (lie judiciary act, must be understood as having exercised their constitutional,, power of making exceptions to the appellate jurisdiction of the court, and that an affirmative of the appellate powers of the court must be understood as a regulation under the Constitution prohibiting the exercise of other powers than those described. (3 Cr. R., 159; 6 Id., 307.)

The Legislature of this State lias, by the act regulating appeals in criminal cases, (Laws of 1846, 330,) exercised the constitutional power vested in thorn-to prescribe the regulations and except ions for tlie exercise of appellate jurisdiction in this class of cases; and by the rules of construction deduced front-the authorities the affirmative description of the powers of the court must be-understood as implying a negative of the exercise of such appellate jurisdiction as is not comprehended within it.

The only inquiry then is whether the. Legislature has prescribed any rule for the exercise of appellate jurisdiction in criminal cases where the appeal is: taken on behalf of the State. Prom an examination of the statute it will be-perceived that no such rule has been prescribed. The first section gives the right of appeal to the defendant. Tlie second prescribes his duty in filing; bills of exceptions that the action of the court may be revised on appeal. The-third uses the indefinite term of the “party taking the appeal.” But this-must be construed in connection with the other provisions of the statute, and therefore used only as descriptive of the defendant. In the -subsequent sections the regulations are all made in reference to an appeal by the defendant, and no rule having been prescribed for the exercise of the jurisdiction where the appeal is taken by the State, we must conclude that the Legislature intended to except such cases from the exercise of appellate jurisdiction, and that we have not competent authority for their revision or to examine them for affirmance or reversal, as the case may be.

Note 1. — Although t-he jurisdiction of the Supreme Court in criminal cases is with such exceptions and under such regulations as the Legislature may make, yet it seems that whatever may be the interpretation of those words when they qualify other grants of authority, they cannot as used here be so construed as to make the right of appeal dependent wholly on the action of the Legislature. (Laturner ». The State, 9 T., 451; Smyrl v. The State, 40 T., 121.)

Having no jurisdiction over the case, it will not be necessary to discuss the question raised as to the correctness of the decision or the want of the right of appeal on behalf of the State at common law.

I omitted to notice at its proper place that the question was reserved as one novel and difficult under the act of 2‘2d December, 1836. If the provision authorizing questions of that character to be reserved could have had any force after the adoption of the Constitution of the State, it could have had no effect on the case before the court, as it was repealed by the act of the 13th May, 1846, a date anterior to that of the trial of the ease.

The appeal is ordered to be dismissed, the court having no jurisdiction.

Ordered accordingly.  