
    The United States vs. William A. Phillips et al.
    Criminal Docket.
    No. 16,268.
    Decided October 25, 1886.
    \The Chief Justice and Justices Cox and Merrick sitting.
    On a judgment ol the Criminal Court sustaining a demurrer to an indictment, the United States has no right of appeal to the General Term.
    Motion to dismiss an appeal taken by the United States from a judgment of the Criminal Court sustaining a demurrer to an indictment for conspiracy.
    The Facts are stated in the opinion,
    H. H. Wells for defendant for the motion.
    The jurisdiction of this court on appeal is purely statutory. Section 112 defines the extent thereof,
    “Any party aggrieved by any order, judgment or decree, made or pronounced at any special term, may, if the same involve the merits of the action or proceeding, appeal.”
    This court has repeatedly construed the meaning of that statute, and has uniformly held that no order was appealable which merely affected the merits, “but it must be a judgment determining the controversy.” Philips vs. Negley, 2 Mackey, 236.
    No order, judgment or decree is appealable which, if not set aside or reversed, will not put an end to the suit or controversy. Id., 254, citing, Parsons vs. Parker, 3 Mac A., 9 ; Adams vs. Adams, 2 Mac A., 416; Bryan vs. Sanderson, 3 Mac A., 402; Philp vs. Gardner, and U. S. vs. Wood, 1 Mac A., 165, 241; Connor vs. Peugh’s Lessee, 18 How., 395; Wyle vs. Coxe, 14 How., 1.
    Parsons vs. Parker, cited above, held that the overruling or sustaining a demurrer was not a final appealable judgment, especially if the right to amend was given.
    The decisions of the Supreme Court of the United States on the same subject are equally uniform and emphatic. See Mayberry vs. Thompson, 5 How., 121; Mordecai vs. Lindsay, Beebe vs. Bussell, and Farrelly vs. Woodfolk, 19 How., 199, 283, 288'; U. S. vs. Fossattj 2 How., 445; Barton vs. Forsyth, 5 Wall., 190.
    A decree is final which leaves “nothing to be litigated between the parties.” Withenbury vs. U. S., 5 Wall., 81-9. In Butterfield vs. Usher, 91 U. 8., 246, the court said: “Our ■jurisdiction upon appeal is statutory only. If some act of Congress does not authorize a case to be brought here, we cannot take jurisdiction of it. The decree (of the Supreme Court D. C.) here appealed from, disposed finally of a motion made in the case but not of the case itself.” It was therefore held not appealable.
    In Harrington vs. Holler, 111 U. S., 796, it was held that the dismissal of an appeal was mot a final decision. “ The Use of the term final decision’ does mot enlarge the scope of the jurisdiction of this court {on appeal). It is a substitute for the words ‘final judgments and decrees,’ and means the -same thing.”
    Bostwick vs. Brinkerhofi) 106 U. S., 3, was the case of a •demurrer sustained below and overruled im the court of appeals. The Supreme Court said: “The rule is well settled and of long standing that a judgment or decree to be final (under the appeal statutes) must terminate the litigation between the parties on the merits of the case.” “If the judgment is not one which disposes of the whole case on its merits it is not final.”
    De Armas’ Heirs vs. U. S., fi How., 103, decides that a judgment sustaining a demurrer to a petition for the confirmation ©f a land claim, but taking no further order on the petition, is mot a final judgment from which am -appeal will lie.
    A judgment sustaining a demurrer to an indictment is not a bar toa new indictment or a trial thereon. 1 Whart. Or. Law, sec. 528; U. S. vs. Watkins, 3 Cranch C. C., 441; State vs. Dresser, 54 Maine, 569; U. -S. vs. Neversom, 1 Mackey, 152; Commonwealth vs. Cook, 6 Serg. & R, 577; 1 Bish. Or. Law, sec. 856 ;U. S. vs. Bigelow, 3 Mackey, 393; People vs. Goodwin, 18 Johns., 188; 4 Wash. C. 0., 402; U. S. vs. Perez, 9 Wheat., 579.
    
      Color for a claim to the right of appeal on the part of the government is given by the decision in State vs. Buchanan, 5 Har. & J., 329, decided in 1821. That case decided that a writ of error would lie to the judgment of a court sustaining a demurrer to an indictment; but the decision was rested on the authority of Hale’s Pleas of the Crown, which in turn founded that supposed right on the assumption that a judgment or demurrer put the party in jeopardy, so that if again indicted he could plead that judgment as a former acquittal. Such, however, as we have already seen, is not and has not been the law for the last century at least.
    It will be found that in almost all of the States the right of appeal is denied to the State in criminal cases, except where granted by special statute. It is denied in the following and other States: New York; People vs. Adams, 3 Denio, 190, 191; People vs. Corning, 2 N. Y., 9; Illinois; People vs. Dill, 1 Scam., 257; People vs. Glodo, 12 111. App., 348; Virginia: Commonwealth®®. Harrison, 2 Va. Cas., 202; Georgia: State vs. Jones, 7 Ga., 422; Iowa: State vs. Johnson, 2 Clarke, 549 ; Florida: Sargeant vs. Russ, 20 Fla., 438; State vs. Burns, 18 Fla., 185; Kansas: State vs. Philips, 33 Kans., 100.
    Statutes now exist giving the right of appeal to the State under varying circumstances, in New York, Arkansas, Tennessee, Alabama, North Carolina, Missouri, Louisiana, California, Nebraska, Kentucky, Maryland, and other States, but I have not found that it has been held in any State except Maryland, that this right of appeal exists in behalf of the State independent of statute. See 3 Whart. Or. Law, sec. 3215.
    A. S. Wobthin&ton for the United States contra:
    
    The right to this, appeal is given by statute. The whole law regulating appeals to this court in general term is contained in section 772, R. S. D. C.
    This section is brought from section 5 of the Act of March 3, 1863, 12 Stat. at L., 763,
    
      It will be remembered tbat in Ex parte Bradley, 7 Wall., 364, it was in 1869 held tbat the Criminal Court of this District was a different court from the Supreme Court of the District, and not a special term of tbat court; and tbat to meet the difficulty thus created, Congress _ enacted, in 1870, that which is now section 753, B. S. D. 0.
    And section 759 provides that “the special term held as the Criminal Court, shall be holden,” etc.
    It is clear, therefore, that the right of appeal given by section 772 to any party aggrieved by any order or judgment made or pronounced at any special term, applies to the orders and judgments of the special term holding a criminal court.
    It is not a matter of doubt that the United States is a party to the proceeding; and it would seem to be obvious that it is aggrieved when it is denied the right to be heard in its own tribunal.
    Analogous to this question is that as to the right of appeal in habeas corpus proceedings.
    Section 763, B. S. U. S., provides that from the final decision upon an application for a writ of habeas corpus “ an appeal may be take'n to the Circuit Court.” In the case of Taylor, 3 Mac Arthur, 426, this court sustained the government’s right of appeal, the court saying:
    “The language giving appeal is general, and we think it would be straining the meaning of the legislation to confine it to one side.”
    Clearly section 772 must be held to mean that the United States shall have the power of appeal as well as the defendant ; and if that right is to be denied, it must be because Congress had no power to confer it.
    Is the statute constitutional? The only clause of the Constitution that can affect this question, is that part of article 5 of the Amendments, providing:
    “Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
    It seems idle to cite authorities to show that jeopardy does not begin until a jury has been charged with the case; hut see Whart. Or. PI. & Pr., 517; 1 Bish. Or. Law, 1014.
    The Maryland case of State vs. Buchanan, 5 Harris & J.} 817, was an indictment for conspiracy. A demurrer to the indictment had been sustained by the county court and the defendants discharged. The State had obtained a writ of error. After a very thorough discussion the Court of Appeals sustained the right of the State to the writ of error, reversed the judgment of the county court, and awarded a writ of procedendo directing “a new tidal of the prosecution.”
    At that time, in Maryland, even the defendant was not entitled to a bill of exceptions in a criminal case. See Queen vs. State, 5 Harris & J., 232.
    The decision in State vs. Buchanan, therefore, put the State on an equality with the defendant in the matter of the right of appeal.
    In this District, almost immediately after the cession, Congress created a. court called the “Circuit Court of the District of Columbia,” which had all the powers vested in Circuit Courts of the United States. Act of February 27, 1801, 2 Stat. at L., 105.
    From that time until 1838 the circuit court had exclusive jurisdiction in both civil and criminal cases in the District. Id., p. 106, sec. 5.
    There was no appeal or writ of error in any case, except to or from the Supreme Court of the United States. The right of appeal exercised as a matter of course in criminal cases by the State of Maryland about this time, the United States appears to have continued' to avail itself of after the passage of the act of 1801 above cited.
    In 1 Cranch, 252, will be found the case of U. S. vs. Simms-, a criminal case, in which the government, in 1803, sued out a writ of error to obtain a revision of a judgment in favor of the defendant in the Circuit Court of the District, and which was argued and decided (against the United States') without any question being made- by counsel or the court as-to the right of the government to take up the case.
    Again,, in. 1805 the United States, iu a case in which- the-Circuit Court of the District had sustained a demurrer to an indictment, sued out^ a writ of error to the Supreme Court. U. S. vs. More, 3 Cranch, 159.
    In that case neither the court nor counsel suggested any distinction between the right of the government and of the defendant to have a criminal case reviewed in the Supreme Court; but the court, sua sponte, suggested a doubt as to whether its appellate jurisdiction extended to criminal cases at all. The point having been argued the court held that it had no appellate jurisdiction whatever in criminal cases.
    In consequence of this ruling, from 1805 to 1838 there was no appeal in this District in a criminal case by either party. Before 1805 both parties appealed; from 1805 to 1838 neither party could appeal; all the time there was perfect equality.
    By the act of July 7, 1838, the “Criminal Court of the District of Columbia” was created. 5 Stat. at L., 306.
    That act provided for a writ of error to the Circuit Court in any criminal case wherein final judgment shall have been pronounced “convicting any person of any crime or misdemeanor.” Thus the statute by its very terms prevented the government from appealing, because appeals were not to be allowed when the judgment was in favor of the defendant.
    This continued to he the state of the law until March 3, 1863, when this court was created. 12 Stat. at L., 762.
    The fifth section of that act, as already stated, contained the provision as to appeals which is now incorporated in section 772 of the Revised Statutes of the District. It gave any person aggrieved by a judgment at any Special Term the right to appeal to the G-eneral Term.
    But, as already stated, the Supreme Court decided in Ex parte Bradley that the Criminal Court, although held by a judge of the Supreme Court of the District, was not a special term. Hence the act of 1838 still regulated appeals from the Criminal Court, and the United States could not appeal because no statute authorized it to do so.
    Finally, by the act of June 21, 1870, 16 Stat. at L., 160, the Criminal Court was declared to be a Special Term of this court; and thereafter the law on this subject remained as it is now.
    It is said that no appeal has been taken by the United States in a criminal case in this District since the act of 1810. This may be the case. It is a right not to be exercised merely because it exists. In State vs. Buchanan, supra, the court, while deciding in favor of the light of the State to appeal, says: “ It is, perhaps, a right that should be seldom exercised.”
    Suppose the case to be, then, that the United States has not attempted to appeal in a criminal case in this District for sixteen years. On what ground and by what analogy can that fac.t be said to control the construction of the statute giving it the right to appeal? I leave it to the defendant’s counsel to answer the question. In the habeas corpus case of Taylor, already cited, the act giving the right of appeal was enacted in 1842, and the United States did not in fact take an appeal until 1819.
    
      The rule in other courts of the United States ; The decision in U. S. vs. More, supra, was put upon the ground that the act giving the right to a writ of error to the Circuit Court of the District limited it to cases where the “matters in dispute” should exceed the value of $-100, which did not, as the court says, apply to criminal cases, because in these cases “the question is the guilt or innocence of the prisoner.” But the law granting appeals and writs of error in cases , arising in the Circuit Courts of the United States, now and ever since 1189, contains a similar provision.
    The right to a review in the appellate court has 'been restricted in the judicial system of the United States to cases in which the matter in dispute exceeds the value of so many dollars.' Judiciary Act, sec. 22,. 1 Stat. at L., 84; B. S., 692.
    There are a few exceptions to this rule, but none of them applies to criminal cases. B. S., 699.
    And so it has always been held that a criminal case cannot be taken to the Supreme Court by either party. Ex 
      
      parle Kearney, 7 Wheat., 38; Forsythe vs. U. S., 9 How., •571; Ex parte Yarbrough, 110 U. S., 651.
    Such cases occasionally go to the Supreme Court on a certificate of division from the judges below; but they can get there in no other way. Ex parte Cordon, 1 Black, 503.
    The only exception to this is Forsythe vs. U. S., supra, which was taken to the Supreme Court by the defendant Opon a law applicable to a special class of cases, and which provided in general Words that writs of error or appeals might be taken to the Supreme Court. Act of February 22, 1847, sec. 4, 9 Stat. at L., 129.
    In Forsythe's Case the appeal was in fact by the defendant. His right to appeal being questioned, the court said;
    “Congress * * * intended to give to either of the parties to the suit or proceedings, the right to a revision by this court of the judgments or decrees rendered by the territorial judges therein * * * whether the case was of criminal or civil jurisdiction.”
    In all the other courts of the United States, therefore, in respect of the right to have judgments in criminal cases reviewed, there is now and there always has been a perfect equality between the defendant and the government.
    
      The rule in the State counts^ It is not proposed to go at length into the laws of all the States on this subject. Enough will be shown to demonstrate that there is nothing novel in the suggestion of the government appealing from •a judgment putting an indictment out of court. v
    Of course the Fifth Amendment has no application to the States of the Union; but each of them has in its constitution a provision against double jeopardy; and the question now under consideration is precisely the same in the States ■that it is in the United States.
    The law of Maryland has already been considered.
    In New York, as in Maryland, the State for many years took appeals in-criminal cases (when there had not been an acquittal by a jury) without its right to do so being doubted.' And in New York, as in Maryland, the question was finally made; but in New York it was held that the practice wa® wrong. People vs. Corning, 2 N. Y., 9.
    This decision was made by the Court of Appeals in 1848-, It was based upon the fact that by the New York statute the right to bring a writ of error in a criminal case was given to the accused, and was not given to the people. About the same time the same question was before the “ Court for the Correction of Errors ” in New York, and was decided the other way. DeBow vs-. People, 2 N. Y., 10, note a.
    In 1852 the legislature of New York amended the law so as to give the State the right to have judgments in criminal cases reviewed, except when the defendant had been acquitted by a jury. Laws of 1852, p. 76. See People vs. Comstock, 8 Wend., 549.
    And this continues to be the law of New York to the present day.
    In Indiana the State for many years had appealed at its pleasure in criminal cases; but the decision in New York in People vs. Corning induced lawyers in Indiana to endeavor to put a stop to the practice. The effort was unsuccessful. A comparison of the New York case and the Indiana decisions is instructive. State vs. Daily, 6 Ind., 9 j see also State vs. Bartlett, 9 Iud., 569.
    In Pennsylvania the State seems to- have exercised the right of appeal in criminal cases from the- beginning without question. Commonwealth vs. Taylor, 5 Binn., 277; Commonwealth vs. McKisson, 8 Serg. & R., 420, See Commonwealth vs. Capp, 48- Pa., 53.
    In 1828 the legislature in Virginia empowered the State to bring a writ of error in a certain class of criminal cases \ and this- right it continued to avail itself of down at least to 1853. Scott’s Case, 10 Gratt., 754.
    In North Carolina, without any statute, but under a constitutional provision giving the Supreme Court of the State “jurisdiction to review on appeal any decision of the courts below, upon any matter of law or legal inference,” it has been settled by a long line of decisions that the State may not appeal in a criminal case when the defendant has been acquitted by a jury; but that it shall have the right where judgment has been given for the defendant, 1, upon a special verdict; 2, upon a demurrer; 3, upon a motion to quash •; and 4, upon a motion in arrest. State vs. Lane, 78 N. 0., 547; State vs. Padgett, 82 N. 0., 544; State vs. Moore, 84 N. 0., 724.
    »In Missouri, by statute, the State has the right of appeal in criminal cases, 1, where the indictment is quashed; 2, where it is held insufficient on demurrer; and 3, Where the judgment thereon is arrested. State vs. Copeland, 65-Mo., 497. -
    In Kentucky^ in 185-9, theState appealed from a judgment sustaining a demurrer to an indictment, and had the judgment reversed. In 1879 it again appealed from a similar judgment. In neither case did it occur to any one that the State had not the right to appeal. Commonwealth vs. Anthony, 2 Met., 399; Commonwealth vs. Cain, 14 Bush.* 529.
    In Tennessee the State, without objection, appealed from a judgment quashing a presentment, and had the judgment reversed. State vs. Tolls, 13 Tenn., 363.
    In Wisconsin it was held in 1843 that the statutes of that State allowed the State an appeal in criminal cases where there had been no verdict. U. S. vs. Satter, 1 Finney, 278*
    In 1864, however, it was decided' that the right did not exist; but the court expressed the opinion that the legislature should -amend the law so as to confer the power of appeal upon the State in such cases. State vs. Kemp, 17 Wis., 690.
   Mr. Chief -Justice CarTter

delivered the opinion of the Court.

This case, while one ef importance, is confined within very brief limits. The question is, whether the United States has the right of appeal to this court when a judgment has been rendered by the Criminal Court sustaining a demurrer to an indictment.

The Constitution provides that no man shall be twice put in jeopardy for the same offence. In the case of United States vs. Bigelow, 3 Mackey, 393, we held, after a deliberate and exhaustive discussion, that a man has only been in jeopardy when he has had a trial and verdict in his case.

The question, therefore, whether the defendant has been put in jeopardy by the hearing of this demurrer in the court below has been practically determined by us in the negative, and we are left disembarrassed upon that point to discuss and consider the Government's right of appeal from a judgment against it on the demurrer. This question is to be determined solely by an interpretation of the statute; for it is a settled doctrine that the right of appeal rests with the legislature alone. .If the statute is silent on the subject, it leaves the complaining party unrelieved, since the grant of appeal in terms to one party necessarily by the expression of that grant confers no such right upon the other.

Counsel for the United States accept this proposition, and very frankly say that if the right does not exist by statute, it does not exist at alL But it is insisted that the statute gives that right, although, under a misconception of its meaning, the right has never been exercised heretofore.

The statute under which this right of appeal is claimed is section lili2 of the Revised Statutes of this District, and is a part of the act organizing this court. It reads as follows:

“Any party aggrieved by any order, judgment or decree made or pronounced at any special term, may, if the same involve the merits of the action or proceeding, appeal therefrom to the General Term of the Supreme Court, and upon such appeal the General Term shall review such order, judgment or decree, and affirm, reverse or modify the same as shall be just."
“Any party,” of course, means all parties, which includes, if it refer to criminal cases, not only the defendant but the United States, for the United States is as much a party as the accused.

If therefore this section applies to the Criminal Court of the District there can be no doubt of the government’s right of appeal. Unfortunately, however, for this argument, the Supreme Court of tbe United States has held that the Criminal Court formed no part of this court at the time of the enactment of this statute, but was a distinct and independent court. That being the case it cannot be considered to have been included by the legislative language or intention when the statute organizing this court and regulating appeals from its several special terms to the General Term was enacted.

And this will more plainly appear by reference to a statute enacted at a subsequent period, by which the criminal court was made a co-ordinate branch of this court. That act, which was passed June -21, 1870, and is embodied in section 758 of the Revise Statutes of the District, declares:

“The several General Terms and Special Terms of the circuit court, district courts and criminal courts, authorized by law, are declared to be, severally, terms of the Supreme Court of the District of Columbia; and the judgments * * * of the * * * criminal courts * * * shall be deemed judgments * * * of the Supreme Court; but nothing contained in this section shall effect the right of appeal as provided by law.”

It is argued by the government that these words refer to the right of appeal as declared by section 772 of the organic act. That is quite true as far as it goes, but it refers to more. The difficulty lies in a misconception of the purview of that section. There was not, as we have seen, and there could not have been any intention to include the criminal court in the provisions of the organic act. As the law then stood, the defendant in the criminal court was given the right of appeal, a right which was denied to the prosecution. Congress, by the act of 1870, merely left the right of appeal as it found it, and, in our opinion, we would not be leaving the law where it has been left by Congress if we applied the provisions of section 772 to the criminal court, and thereby give the right of appeal to the United States. That is all there is to this question.

The appeal must be dismissed, and it is so ordered.  