
    The People of the State of New York, Appellant, v. James Dundon and Others, Respondents.
    Third Department,
    May 18, 1906.
    -Crime — error to dismiss indictment because proof of the absence of witnesses whose depositions were used before grand jury was made to such jury instead of the court — no appeal from such dismissal.
    Although an indictment has been dismissed by the trial court upon the erroneous ground that on the presentation-to the grand jury of depositions of witnesses without the State proof of the absence of such witnesses from the State was made to the grand jury rather than-to the court, nevertheless the People cannot appeal to the Appellate Division from such dismissal as the same is not allowed by .section 518 of the Code of Criminal Procedure.
    The right of appeal in criminal cases is wholly statutory
    
      Appeal by the plaintiff, The People of the State of New York,. from an order of the Supreme Court, made at the Broome Trial Term and entered in. the office of the clerk of the county of Broome on the 20th day of March, 1906, dismissing an indictment against the defendants. 1
    
      Roger P. Clark, District Attorney, for the appellant.
    
      Frank S. O'Neil, for the respondents.
   Cochrane, J.:

The defendants were indicted for the crime of grand larceny in the second degree. In the investigation of the charge resulting in such indictment the grand jury received the depositions of two witnesses who were at the time absent from the State. ' These depositions had been properly taken as required by subdivision 3 of section 8 of the Code of Criminal Procedure. And upon satisfactory proof to the court as required by said last-mentioned provision that the witnesses could not with due diligence be found in the State, their depositions became proper evidence before the grand jury. (Code Crim. Proc. § 255,) Sufficient proof of the absence from the State of such witnesses was made before the grand jury: The-trial courts however, dismissed the indictment because stich proof should have been made to the justice holding the term rather than to the grand jury.

“ An appeal to the Appellate Division of the Supreme Court may be taken by the People in the following cases and no other: I. Upon a judgment for-the defendant on a demurrer to the indictment. 2. Upon an order of the court arresting the judgment.” (Code Crim Proc. § 518.) The right of appeal in criminal cases, is statutory only. (People v. Carroll, 105 App. Div. 147.) It follows that the order in question is not appealable.

It is stipulated that the respondents waive any question as to the right of the People to appeal from this order. But consent cannot - give -jurisdiction to an appellate court. (McMahon v. Rauhr, 47 N. Y. 67, 72; Wilmore v. Flack, 96 id. 519.)

We think the order in question is erroneous, but for the reasons above stated we are not at liberty to entertain the' appeal therefrom.

All concurred.

Appeal dismissed.  