Summary
In State v. Zachte, 69 S.D. 519, 12 N.W.2d 372, 373, this court said, "An appeal by defendant in a criminal action may be taken only from the final judgment of conviction or from an intermediate order when allowed by this court."
Summary of this case from State v. DavisOpinion
File No. 8649.
Opinion filed December 28, 1943.
1. Criminal Law.
Order denying defendant's motion made before trial to quash search warrant and suppress all evidence secured by allegedly illegal search and seizure was not appealable as a "final judgment." SDC 34.4101, 34.4103.
2. Criminal Law.
An order denying defendant's motion before trial to quash search warrant and suppress all evidence secured by illegal search was not a "final order affecting a substantial right" made in special proceeding so as to be appealable, where record did not disclose that order had been signed, attested and filed. SDC 33.1702, 34.4101, 34.4103.
Appeal from Municipal Court of Sioux Falls; Hon. Walter Conway, Judge.
Prosecution by the State of South Dakota against Gust Zachte for selling alcoholic beverages without a license. From an order denying defendant's motion to quash search warrant and to suppress all evidence secured by alleged illegal search and seizure, defendant appeals.
Appeal dismissed.
Louis H. Smith, of Sioux Falls, for Appellant.
George T. Mickelson, Atty. Gen., and Ray F. Drewry, Asst. Atty. Gen., for Respondent.
On March 15, 1943, Gust Zachte, defendant herein, was charged in a complaint containing three counts with the crime of selling alcoholic beverages without a license and was held to answer at the next term of municipal court of the city of Sioux Falls. The sheriff of Minnehaha county assuming to act by virtue of a search warrant seized certain personal property described in his return as intoxicating liquors. The record discloses that defendant before trial made a motion to quash the search warrant and to suppress all evidence secured by the alleged illegal search and seizure. The motion was denied, and defendant attempts to appeal from the ruling of the court.
An appeal by defendant in a criminal action may be taken only from the final judgment of conviction or from an intermediate order when allowed by this court. SDC 34.4101, 34.4103. The ruling in question is not a judgment and there was no allowance of an appeal from an intermediate order.
Upon the record, it cannot be held that this is an appeal from a final order affecting a substantial right, made in special proceedings. See State v. Keiffer, 45 S.D. 288, 187 N.W. 164. An order becomes complete and effective when the same has been signed, attested and filed. SDC 33.1702. he ruling of the court was not an order within the meaning of these statutory provisions.
The appeal is therefore dismissed.
All the Judges concur.