
    SUPREME COURT — APP. DIVISION — THIRD DEPARTMENT,
    March 5, 1913.
    THE PEOPLE v. EDWARD U. KAHN.
    (140 N. Y. Supp. 618, 155 App. Div. 82.)
    (1.) Right of appeal.
    In the absence of a statute authorizing an appeal in a criminal case, no appeal can be taken, as such right is statutory only.
    (2.) Same — When state can appeal.
    By virtue of the provisions of section 518 of the Code of Criminal Procedure, the state may appeal from a judgment in favor of the defendant entered upon a demurrer to the indictment, and also from an order arresting a judgment of conviction.
    (3.) Demurrer to indictment.
    
    The objection that the facts stated in an indictment do not constitute a crime is a ground of demurrer.
    (4.) Motion to set aside indictment.
    It is only where a substantial right is affected which cannot be otherwise determined that the courts will, enlarge the grounds for setting aside an indictment, and hold that section 313 of the Code of Griminal Procedure which prescribes when an indictment may be set aside on motion, is not restrictive as to such grounds.
    (5.) Demurrer to indictment; * when it cannot be made.
    The defendant cannot demur while a plea of not guilty stands.
    (6.) Appeal from order on demurrer.
    The defendant cannot appeal from a judgment entered upon his demurrer to an indictment.
    Appeal from Fulton County Court.
    Edward U. Kahn was charged' with grand larceny, and from an order denying his motion to set aside the first count of the indictment, he appeals.
    Dismissed.
    Argued before SMITH, P. J., and KELLOGG, LYON, and HOWARD, JJ.
    Abraham A. Silberberg, of New York City, for appellant.
    William S. Cassedy, Dist. Atty., of Gloversville, for the People.
    
      
       See Note following this case.
    
   PER CURIAM.

The. defendant was indicted by the grand jury of the county of Fulton for the crime of grand larceny in the first degree. The first count of the indictment charges the defendant with having committed such crime by means of a false written statement respecting the ability of Edward U. Kahn, Incorporated, to pay for goods sought to be purchased from the Gloversville Silk Mills, a corporation. The representations are set out in full, and the statement which is charged to have been false is signed “ Edward U. Kahn, Pres.” The second count charges the defendant with feloniously taking the same goods through said alleged false pretenses. On arraignment the defendant pleaded not guilty, and at the same time moved orally for a dismissal of the first count of the indictment, on the ground that it did not state facts sufficient to constitute a crime, and that it was insufficient in law upon its face, in that the pretenses set forth were not such pretenses in writing, as required by law to support a criminal prosecution. •Subsequently an order was entered setting forth the making of such motion and its denial, and from that order the defendant appeals.

The people urge that the defendant has no right to a direct appeal from such an order, and that it is an intermediate one, which can be reviewed only on an appeal from a judgment of conviction. The defendant insists that he had the right to make the motion to set aside the count of the indictment because upon its face it failed to state sufficient facts constituting a crime, and that a denial of his motion affected a substantial right which he has the privilege of reviewing before he is put to the expense and jeopardy of a trial.

We think the learned district attorney is correct in his claim that the order cannot be appealed from directly, but can be reviewed only on an appeal from the judgment of conviction.

The right of appeal in criminal cases is statutory only, and, in the absence of a statute authorizing it in a given case, no appeal can be taken. People v. Trezza, 128 N. Y. 529, 28 N. E. 533, 8 N. Y. Crim. 291; People v. Priori, 163 N. Y. 99, 107, 57 N. E. 85. It is provided by section 517 of the Code of Criminal Procedure that a defendant can appeal to the Supreme Court only from a judgment of conviction after indictment. The people by section 518 are permitted to appeal to the Supreme Court from a judgment for the defendant entered upon a demúrrer interposed by him to the indictment, and also from an order of the court arresting a judgment of conviction. This restricted right of appeal by the defendant has been consistently recognized by the courts and the plain reading of the section has been observed and reiterated from time to time; the latest to which our attention has been called being in People ex rel. Stabile v. Warden, 202 N. Y. 138, 152, 95 N. E. 729, 26 N. Y. Crim. 108. Recognizing this rule, it was held in People v. Markham, 114 App. Div. 387, 99 N. Y. Supp. 1092, 20 N. Y. Crim. 318, that a defendant who had been convicted, but whose sentence had been suspended, had no right of appeal because no judgment had or could be entered before sentence was pronounced; and in People v. Carroll, 105 App. Div. 147, 93 N. Y. Supp. 926, that the defendant had no right of appeal from an order denying his motion for the appointment of a referee to take the deposition of a witness to be used on a motion to set aside an indictment; and in Matter of Montgomery, 126 App. Div. 72, 110 N. Y. Supp. 793, 22 N. Y. Crim. 485, that the defendant had no right of appeal from an ■order denying his inspection of the minutes of the grand jury. In recognition, also, of the restricted right of appeal by the people, this court held in People v. Dundon, 113 App. Div. 369, 98 N. Y. Supp. 1048, 20 N. Y. Crim. 157, that, although an order dismissing an indictment on motion of the defendant was erroneous, it could not entertain an appeal therefrom, it not coming within the provisions of section 518 or being a judgment for the defendant entered upon demurrer to an indictment ; and in People v. Herbert, 152 App. Div. 579, 137 N. Y. Supp. 409, we dismissed the appeal of the people taken from an order made by a court of special sessions dismissing a criminal complaint, on the ground that there was no provision of law for such appeal. Section 517 of the Criminal Code, however, does provide that any actual decision of the court in an intermediate order or proceeding forming a part of the judgment roll may be reviewed on an appeal from a judgment of conviction.

The confusion with respect to the practice and the right of a defendant in a criminal action to have a review of intermediate orders made to his alleged prejudice arises from a misconception of the holdings of the Court of Appeals in People v. Glen, 173 N. Y. 395, 66 N. E. 112, 17 N. Y. Crim. 225, People v. Canepi, 181 N. Y. 398, 74 N. E. 473, and People v. Sexton, 187 N. Y. 495, 80 N. E. 396, 116 Am. St. Rep. 621, 21 N. Y. Crim. 9. In each of those cases there was an appeal by the defendant from a judgment of conviction, and all that was held was that certain intermediate orders and rulings, notwithstanding the apparent restriction of section 313 of the Code of Criminal Procedure, formed a part of the judgment roll, and were reviewable where a defendant had been convicted and appealed from the judgment entered thereon. In none of those cases was it held that a direct appeal could be had from such intermediate orders, but the only holding was that they were reviewable on an appeal from the judgment itself. Nor is there anything to the contrary in People ex rel. Hummell v. Trial Term, 184 N. Y. 30, 76 N. E. 732. In that case the relator had moved to dismiss an indictment against him on the ground that he had been compelled to testify against himself before the grand jury by which it was found. His motion had been denied, and he sought a writ of prohibition against proceeding further on the indictment. The writ was denied him on the ground that he had a remedy by appeal because the order denying his motion to-set aside the indictment could properly be incorporated in his case on appeal from any judgment of conviction, and 401. Section 750, as it appeared in the Code as originally adopted, provided that.

“ An appeal cannot be allowed for any other cause than the erroneous decision of the court in the course of the proceedings before it or in the determination of the cause. * * * ”

By chapter 360, Laws of 1882, the section was amended to read:

“ An appeal may be allowed for an erroneous decision or determination of law or fact upon the trial.”

By the same act section 764 was amended by adding at the end the words “ or may modify the sentence.” The former section has since been again amended in matters not material to our inquiry. By this amendment the Legislature intended, it seems to me, to provide specifically for the review of the propriety of the sentence, even though it were one within the power of the trial court to impose; for every other disposition of the judgment upon appeal was already provided for in section 764 before the final words were added to that section. To limit the words “ of law or fact upon the trial ” in section 750 to the proceedings before judgment would be an unwarranted restriction. In People ex rel. Stokes v. Riseley, 38 Hun, 280, there is a dictum to the effect that an appeal would lie from an illegal judgment, rendered upon a valid conviction— that is, the judgment void because the sentence was greater than the court had power to impose — -and that the appellate court could pronounce a legal judgment. That being true, such appeal of necessity would be solely to review the sentence, the valid conviction excluding the notion of error before judgment. In People v. Baldwin, 4 N. Y. Supp. 608, the court (General Term, Third Department) says:

“We think, therefore, that, although the defendant pleaded guilty, yet he had the right to have the Court of Sessions exercise its discretion as to the sentence.”

The order of the Court of Sessions dismissing the appeal was reversed.

The power to modify upon appeal sentences, legally imposed, has been generally recognized and exercised by the courts. Other reported cases illustrating this statement are People v. McIntosh, 5 N. Y. Cr. R. 38, People v. Mulkins, 25 Misc. Rep. 599, 54 N. Y. Supp. 414, and People v. Loomis, 65 Misc. Rep. 156, 121 N. Y. Supp. 91, 24 N. Y. Crim. 140.

To deny to a defendant the right to require the appellate court to exercise its discretion in reviewing the sentences pronounced by trial magistrates would in my opinion be contrary to the legislative intent, and certainly opposed to the current of judicial authority and practice.

The order should be reversed and the case remitted to the County Court of the county of Onondaga, to the end that the question whether the sentence of the Court of Special Sessions was excessive may be there passed upon and determined. All concur, except McLENNAN, P. J., who dissents upon the opinion of ROSS, County Judge.

NOTE ON DEMURRER TO INDICTMENT.

Nature of Remedy.

An objection to the form of an indictment, that it charged not only conspiracy, but false pretenses as well, and was, therefore, objectionable under subd. 3, section 323, Code Crim. Pro., can only be taken by demurrer and cannot be raised on appeal. People v. Wiechers, 94 A. D. 19, 18 N. Y. Crim. 350, aff’d 179 N. Y. 459, 18 N. Y. Crim. 554.

That an indictment does not conform to the requirements of sections 275 and 276 of the Code of Criminal Procedure can only be raised by demurrer. People v. Conroy, 97 N. Y. 62, 2 N. Y. Crim. 565, affirming 2 N. Y. Crim. 247.

Where, after pleading not guilty to an indictment for larceny, the defendant moved to quash on the ground that the indictment did not sufficiently describe the offense, it was held, on appeal, that such objections should have been presented by demurrer. People v. Carr, 3 N. Y. Crim. 578.

Grounds Therefor.

By section 56 Code Crim. Pro., the Court of Special Sessions, (except in two counties) has exclusive jurisdiction to try misdemeanors except where a certificate is made by a county judge or a justice of the Supreme Court that a particular misdemeanor should be tried by indictment. In the absence of such a certificate an indictment found by the grand jury is demurrable. People v. Knatt, 156 N. Y. 302, 13 N. Y. Crim. 92, rev’g 19 App. Div. 628.

An indictment charged that on a specified day A. & E. wilfully and maliciously, wrongfully and unlawfully did sell and cause to be sold distilled, rectified, spirituous, fermented and malt liquors, ale, beer, and wine in quantities less than five gallons at a time by retail and to be drank on the premises, to W. H. and to divers other persons whose names are unknown to the grand jury ***** without having paid excise taxes upon the business of trafficking in liquors and without having a liquor tax certificate therefor and not being authorized thereto by law, Held, that the indictment charged a joint sale by the defendants to the person named and those unknown, and was not demurrable as joining two or more crimes. People v. Schmidt, 19 Misc. 458, 12 N. Y. Crim. 282.

That an indictment does not conform to the requirements of sections 275 and 276 of the Code of Criminal Procedure can only be raised by demurrer. People v. Conroy, 97 N. Y. 62, 2 N. Y. Crim. 565, aff’g 33 Hun 119, 2 N. Y. Crim. 247.

If more than one crime be charged in an indictment, except as permitted by section 279 of the Code of Criminal Procedure, the only remedy is by demurrer. People v. McCarthy, 110 N. Y. 309.

An objection to the sufficiency of the description of the personal property charged to have been appropriated must be taken by demurrer; it cannot be raised on the trial or on motion in arrest of judgment. People v. Upton, 38 Hun 107, 4 N. Y. Crim. 455.

An objection that an indictment charges more than one offense must be taken by demurrer. People v. Upton, 38 Hun 107, 4 N. Y. Crim. 455; People v. Carr, 3 N. Y. Crim. 578.

Waiver of Right.

Where defendants are jointly indicted and demur to the indictment, they thereby admit the charge to be true and waive the objection that they should be individually instead of jointly charged. People v. Kelly, 3 N. Y. Crim. 272.  