From Casetext: Smarter Legal Research

State v. McEnroe

Supreme Court of North Dakota
Oct 9, 1939
69 N.D. 445 (N.D. 1939)

Opinion

File No. Cr. 170.

Opinion filed October 9, 1939.

Appeal from the District Court of Cass County, Holt, J. The State appeals from an order setting aside the information.

Appeal dismissed.

Alvin C. Strutz, Attorney General, Milton K. Higgins, Assist- and Attorney General, Ralph F. Croal, State's Attorney, and Odin J. Strandeness, Assistant State's Attorney, for appellant.

Francis Murphy, for respondent.


The defendant moved that the information which had been filed against him be set aside. Comp. Laws 1913, §§ 10,728-10,730. The motion was granted, and the state has appealed.

The defendant moves that the appeal be dismissed on the ground that the state has no right to appeal from an order setting aside an information.

The motion to dismiss the appeal must be granted. The right of appeal is statutory. Myrick v. McCabe, 5 N.D. 422, 67 N.W. 143; Whitney v. Ritz, 24 N.D. 576, 140 N.W. 676; Stimson v. Stimson, 30 N.D. 78, 152 N.W. 132; Torgerson v. Minneapolis, St. P. S. Ste. M.R. Co. 51 N.D. 745, 200 N.W. 1013; State v. Sweeney, 48 S.D. 248, 203 N.W. 460. See also State v. Fortune, 29 N.D. 289, 150 N.W. 926; State v. Stunkard, 28 S.D. 311, 133 N.W. 253. In a criminal action the state has only such right of appeal as is expressly conferred by law. 17 C.J. p. 39; United States v. Sanges, 144 U.S. 310, 36 L. ed. 445, 12 S. Ct. 609; State v. Stunkard, 28 S.D. 311, 133 N.W. 253, and State v. Sweeney, 48 S.D. 248, 203 N.W. 460, supra; People v. Herbert, 152 App. Div. 579, 137 N.Y.S. 409; People v. Dundon, 113 App. Div. 369, 98 N YS. 1048; People v. Knowles, 27 Cal.App. 498, 155 P. 140; Note in 19 L.R.A. pp. 345 et seq.

Under our laws (Comp. Laws 1913, § 10,993) the state has the right to appeal only,

"1. From a judgment for the defendant on a demurrer to the information or indictment.

"2. From an order granting a new trial.

"3. From an order arresting judgment.

"4. From an order made after judgment, affecting any substantial right of the state.

"5. From an order of the court directing the jury to find for the defendant."

The order sought to be appealed from here is not one of those from which the state may appeal. Comp. Laws 1913, § 10,993; State v. Fortune, 29 N.D. 289, 150 N.W. 926; People v. Herbert, 152 App. Div. 579, 137 N.Y.S. 409; and People v. Knowles, 27 Cal.App. 498, 155 P. 140, supra.

Appeal dismissed.

NUESSLE, Ch. J., and BURR, BURKE, and MORRIS, JJ., concur.


Summaries of

State v. McEnroe

Supreme Court of North Dakota
Oct 9, 1939
69 N.D. 445 (N.D. 1939)
Case details for

State v. McEnroe

Case Details

Full title:STATE OF NORTH DAKOTA, Appellant, v. T.H. McENROE, Respondent

Court:Supreme Court of North Dakota

Date published: Oct 9, 1939

Citations

69 N.D. 445 (N.D. 1939)
287 N.W. 817

Citing Cases

State v. Rueb

Until this case was decided, we have held that the State has only such right of appeal in a criminal action…

State v. Howe

The right to appeal is purely statutory, and an order is appealable only if it comes within the provisions of…