Opinion
September 14, 1951.
SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and HERRMANN, J., sitting.
Everett F. Warrington for plaintiffs in error. John J. McNeilly, Deputy Attorney-General, for the State.
Writ of Error to the former Court of General Sessions of Sussex County seeking review of the denial of a motion to quash the indictment.
The State moved to dismiss the writ of error for lack of finality in the judgment sought to be reviewed.
Supreme Court, No. 2, May Session, 1951.
Jurisdiction to issue writs of error in criminal causes is conferred upon this court by Section 11 of Article IV of the Constitution and is limited to causes in which the sentence shall be death, imprisonment exceeding one month, or fine exceeding $100. There has been, as yet, no trial and conviction of the plaintiffs in error and, accordingly, review by writ of error of the ruling upholding the indictment at this time is premature.
Plaintiffs in error contend, however, that in a proper case a writ of error may be considered as a writ of certiorari and review of interlocutory rulings be had at an intermediate stage of a criminal cause. The argument is based upon the contention that the common law writ of certiorari is a discretionary writ and thus may be utilized to review interlocutory rulings. Irrespective of the nature of the common law writ of certiorari, Section 4264, R.C. 1935 provides that writs of certiorari issuable out of this court shall be writs of right and not of grace. The effect of this statute is to place writs of certiorari in the same category as writs of error, particularly with respect to the necessity for final judgment below prior to review by this court. The consistent practice in this state has been to make no distinction between writs of error and writs of certiorari with respect to the requirement of finality of the judgment sought to be reviewed. King, Adm'x v. Wright, Adm'r, 2 Harr. 135; Vaughan v. Marshall, 1 Houst. 348; Johnson v. State, 6 Penn. 450, 67 A. 785; 1 Woolley Delaware Practice, § 624; Rule 48 of this court.
The motion to dismiss the writ of error is granted.