People v. Oliver

214 A.D. 804

Opinion

Appeal from order of County Court of Suffolk county overruling demurrer to indictment dismissed. There is no statutory authority for an appeal by defendant in a criminal case from an order overruling Ms demurrer and denying Ms motion to dismiss the indictment. The right to appeal in such cases is purely statutory. (Code Crim. Proc. § 517; Matter of Montgomery, 126 App. Div. 72.) Such order can be brought up for review upon appeal from a formal judgment of conviction. (People v. Carroll, 105 App. Div. 147; People v. Markham, 114 id. 387; People v. Lazersohn, 147 id. 227; People v. Mascola, 174 id. 360.) The claim that defendant has been once put in jeopardy for the offense charged, and acquitted or convicted, must be raised by plea to the indictment. (Code Crim. Proc. § 332.) It was not before the court on the demurrer, and the alleged “ stipulation ” as to the facts involved in the former trial has no place in the record. Kelly, P. J., Rich, Jaycox, Kelby and Kapper, JJ., concur