Opinion
No. 4397.
Decided March 15, 1927.
1. CRIMINAL LAW — APPEAL FROM ORDER QUASHING INFORMATION FOR ABSENCE OF PRELIMINARY EXAMINATION AND COMMITTING ORDER IS DISMISSIBLE AS NOT "FINAL JUDGMENT" (CONST. ART. 8, § 9; COMP. LAWS 1917, § 9208). Under Const. Art. 8, § 9, and Comp. Laws 1917, § 9208, only final judgments are appealable by the state in criminal actions, and state's appeal from order quashing and setting aside information on the grounds that no preliminary examination had been held and that no order of commitment had been made by a magistrate will be dismissed.
Appeal from District Court, Fifth District, Washington County; T.H. Burton, Judge.
Sidney Thompson was accused by an information of a felony. From an order quashing and setting aside the information, the state appeals.
APPEAL DISMISSED.
G. Hunter Lunt, Dist. Atty., of Cedar City, for the State.
Bagley, Judd Ray, of Salt Lake City, and Wm. F. Knox, of Beaver, for respondent.
Defendant was accused by an information filed in the district court of a felony. On defendant's motion the court ordered the information quashed and set aside upon the grounds that no preliminary examination for the offense charged had been held and no order of commitment made
Corpus Juris-Cyc. References:
Criminal Law 17 C.J. p. 42 n. 43. therefor by a magistrate. The defendant was not discharged nor the action dismissed, but the court increased defendant's bail and ordered that he "be held for another preliminary hearing." The state has attempted to appeal from the orders thus made. Its notice states that it appeals "from the decision and order * * * whereby the information * * * was quashed upon the grounds and for the reason that the defendant had no preliminary examination." Defendant moves to dismiss the appeal upon the grounds that there was no final judgment in the action from which an appeal could be taken, and no authority of law for the appeal. The motion must be sustained. Whatever else may limit the right of appeal by the state in criminal actions, it is beyond question that such right is confined to appeals from final judgments. Const. Utah, art. 8, § 9. Within this limitation Comp. Laws Utah 1917, § 9208 provides:
"An appeal may be taken by the state:
"1. From a judgment for the defendant on a demurrer to the information or indictment;
"2. From an order arresting judgment;
"3. From an order made after judgment affecting the substantial rights of the state;
"4. From an order of the court directing the jury to find for the defendant."
The record in this case fails to show any order or judgment mentioned in the statute, or any other final judgment, but, on the contrary, indicates affirmatively that no final judgment was entered.
Appeal dismissed.
THURMAN, C.J., and GIDEON and STRAUP, JJ., concur.
FRICK, J., died before announcement of decision.