First Department, May, 1908. [Vol. 126. In the Matter of the Application of WILLIAM R. MONTGOMERY, Appellant, for an Order Directing the Stenographer of the Grand Jury Impaneled in the Supreme Court for the January, 1908, Term, and the District Attorney of the County of New York, to Furnish to Him a Copy of the Evidence Taken Before the Said Grand Jury upon Which Certain Indictments Found Against the Said William R. Montgomery Were Based. WILLIAM TRAVERS JEROME, Respondent. First Department, May 15, 1908. Appeal — criminal action — inspection of grand jury minutes. The right of appeal in criminal cases is purely statutory and not constitutional. An order denying a motion, made by a defendant under indictment, for a copy of the minutes of the grand jury which indicted him is not appealable, for the motion is one in a criminal action and no right of appeal is given by statute. It seems, that the sole purpose for which an inspection of the minutes of the grand jury can be granted is to enable defendant to make a motion to set aside the indictment for reasons stated in section 313 of the Code of Criminal Procedure, and where his constitutional rights have been invaded. It seems, that such inspection can never be had as a matter of right and does not depend upon whether or not a preliminary examination has been had. APPEAL by the petitioner, William R. Montgomery, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 13th day of February, 1908, denying the petitioner's application for a copy of certain evidence taken before the grand jury. Howard S. Gans, for the appellant. Robert C. Taylor of counsel [ William Travers Jerome, District Attorney], for the respondent. CLARKE, J. At the January term, 1908, of the Criminal Term, Part 1, of the Supreme Court, the grand jury therein impaneled found two indictments against William R. Montgomery, charging violations of section 600 of the Penal Code in that being an officer of a bank he did knowingly overdraw his account in said bank and thereby App. Div.] First Department, May, 1908. obtained the money and funds thereof. He thereafter and during said term made a motion before said court for an order directing the stenographer of the grand jury therein impaneled to furnish to him a copy of the evidence taken before the said grand jury upon which said indictments were found. This application was denied by an order made and entered on the 13th day of February, 1908, from which order this appeal is taken. 66 The first question to be considered is whether the order is appealable. The Code of Criminal Procedure provides in section 250 that the grand jury must appoint one of their number as clerk, who is to preserve minutes of their proceedings (except of the votes of the individual members on a presentment or indictment) and of the evidence given before them," but it was not until 1885 that provision was made for the attendance of a stenographer upon the grand jury. By chapter 348 of the laws of that year,* after providing for such stenographer, the act provided: "§ 5. It shall be lawful for any stenographer duly appointed and qualified as hereinbefore provided, to attend and be present at the session of every grand jury impaneled in the county in which he is appointed, and it shall be his duty to take in shorthand the testimony introduced before such grand juries and to furnish to the district attorney of such county a full copy of all such testimony as such district attorney shall require; but he shall not permit any other person to take a copy of the same, nor of any portion thereof, nor to read the same, or any portion thereof, except upon the written order of the court duly made after hearing the said district attorney. All of the said original minutes shall be kept in the custody of said district attorney, and neither the same nor a copy of the same or of any portion of the same shall be taken from the office of said district attorney, excepting as above provided." The Code of Criminal Procedure nowhere makes provision for an application to procure the inspection of or a copy of the said min * Amd. by Laws of 1886, chap. 131; Laws of 1894, chap. 82; Laws of 1895, chaps. 177, 661; Laws of 1897, chap. 25; Laws of 1899, chaps. 45, 516; Laws of 1900, chap. 329; Laws of 1904, chap. 354, and Laws of 1907, chaps. 222, 587.-[REP. Section 5 of the act has been amended by Laws of 1899, chap. 516, and Laws of 1907, chap. 587.-- [REP. * * First Department, May, 1908. * * * * [Vol. 126. to furnish *"this is none the less a utes. From time to time, however, such motions have been made and granted or refused as the case might be. There is no case to which our attention has been called, or which we have been able to discover, in which an appeal has been entertained from the order made upon such application. While the appellant has chosen to entitle his papers "In the Matter of the Application of William R. Montgomery for an order directing the stenographer of the Grand and the District Attorney Jury * to him a copy of the evidence motion in a "criminal action or proceeding." The moving papers aver that the appellant has been indicted by the grand jury; that said indictments have been found upon illegal or insufficient evidence; that witnesses were heard when improper persons were present before the grand jury in violation of law, and he claims as of right an opportunity to examine the minutes in order that he may make and support a motion to set aside said indictments upon the evidence of said illegal matters which he expects to find in said minutes. His standing in court, his right to make the motion, is based solely upon the fact that he has been indicted and that he intends to move to set the indictments aside. The indictment is in a criminal action. The motion to set aside the indictment must be made in said action. If it were not for the existence of the criminal action the motion would be of precisely the same nature as that considered in Matter of Jones (181 N. Y. 389), where a motion to quash a presentment of a grand jury was before the court, which said: "The motion in question was not made in an action either civil or criminal, for none was pending. It was not the commencement of a special proceeding of a civil nature because it was not a prosecution by a party (Code Civ. Pro. §§ 3333, 3334). It was not a proceeding or special proceeding of a criminal nature authorized by the Code of Criminal Procedure (Code Cr. Pro. part 6, titles 1-11, §§ 773-952).” As there is a criminal action pending, and as this motion is made by the defendant therein in relation thereto, it must be held to be a motion in such action. There is no constitutional or general right of appeal in criminal cases. The right to appeal in such cases is purely statutory. The policy of the law is to forbid intermediate appeals, for if such were App. Div.] First Department, May, 1908. permitted every motion followed by an order could be the subject thereof, and the delays in bringing offenders to trial would be interminable. Such delays are serious enough as it is, where appeals are allowed from judgments. Section 515 of the Code of Criminal Procedure provides that "Writs of error and of certiorari in criminal actions and proceedings and special proceedings of a criminal nature, as they have heretofore existed, are abolished; and hereafter the only mode of reviewing a judgment or order in a criminal action or proceeding, or special proceeding of a criminal nature, is by appeal." Section 517 thereof provides that "An appeal to the Supreme Court may be taken by the defendant from the judgment on a conviction after indictment, except that when the judgment is of death the appeal must be taken direct to the Court of Appeals, and, upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment-roll, as prescribed by section four hundred and eighty-five, may be reviewed." In People v. Dunn (31 App. Div. 139) this court said: "The only other point made by the defendants is that the act deprives them of an appeal from the decision of the trial court upon their challenges. There is nothing in this point. The right of appeal is not guaranteed by the Constitution. That is a matter entirely within the legislative judgment. Even the general right to an appeal, in the absence of a constitutional provision to the contrary, is but a privilege which the Legislature may take away." This language was expressly approved on appeal (157 N. Y. 528). * * * In People v. Martin, No. 1 (99 App. Div. 372) this court dismissed an appeal from an order denying the defendants' motion to dismiss an indictment for lack of prosecution, saying: "It is the opinion of the court that the order is not appealable. Appeals in criminal cases may be taken only where expressly allowed by statute, and the only appeal allowed by the Code of Criminal Procedure is from a judgment of conviction, on which appeal an intermediate order or proceeding forming part of the judgment roll may be reviewed." In People v. Carroll (105 App. Div. 147) the Appellate Division of the third department dismissed an appeal from an order denying a motion for the appointment of a referee to take a deposition to be First Department, May, 1908. [Vol. 126. used upon a motion to set aside an indictment, saying: "It is not claimed that there is any statutory provision authorizing the appeal," and, alluding to section 517 of the Code of Criminal Procedure, "This section grants no authority to take the appeal which has been here attempted." In People v. Dundon (113 App. Div. 369) the Appellate Division of the third department dismissed an appeal by the People from an order dismissing the indictment. It was stipulated that the respondents waived any question as to the right of the People to appeal, but the court said: "Consent cannot give jurisdiction to an appellate court. We think the order in question is erroneous, but for the reasons above stated we are not at liberty to entertain the appeal therefrom.” * * * We have recently had occasion to consider this matter in People v. Markham (114 App. Div. 387). We dismissed an appeal, stating: "The right to appeal being, therefore, a mere statutory one, and no appeal having been provided for in cases similar to the one at bar, it follows that the motion to dismiss the appeal must be granted." And in our opinion handed down at the April term, 1908, of this court (Hebberd v. Loeb, 125 App. Div. 579, citing People v. Trezza, 128 N. Y. 529; People v. Mayhew, 151 id. 607; People v. Priori, 163 id. 99), we dismissed an appeal from an order denying a motion for a new trial made after judgment and affirmance thereof upon appeal as not appealable. In Matter of Jones (181 N. Y. 389), which was an appeal from an order denying a motion to set aside and quash a presentment of· a grand jury, the Court of Appeals said: "The right of appeal in civil actions and proceedings is governed by sections 190 and 191 of the Code of Civil Procedure, and in criminal actions and proceedings by sections 515 to 533 of the Code of Criminal Procedure. These provisions are exclusive, and unless they authorize an appeal to this court we have no jurisdiction. * As there is no inherent right of appeal, and none is allowed by statute from such an order as was made by the Appellate Division, we are compelled to dismiss the appeal." * * In People v. Glen (173 N. Y. 395) the court said: "That the Legislature has the undoubted right to regulate mere matters of procedure in all actions and proceedings, both criminal and civil, is |