In November 1954 petitioner was indicted in the Corpus Christi Division of the United States District Court for the Southern District of Texas, 17 F.R.D. 512, 519, for willfully attempting to evade federal income taxes by filing false returns for the years 1949, 1950 and 1951. In April 1955 the District Court granted petitioner's motion to transfer the case to the Laredo Division of the Southern District, finding that petitioner, a prominent political figure, could not obtain a fair trial in the Corpus Christi Division because of local prejudice against him. Deeming itself without power to transfer the case elsewhere than Laredo without the defendant's consent, the District Court also found against the Government's claim that it would or might under 'a severe handicap' in trying the petitioner in Laredo.
Shortly thereafter, on May 3, 1955, the Government obtained a new indictment against petitioner in the Austin Division of the Western District of Texas for the same offenses. The next day it moved in the Corpus Christi Division for leave to dismiss the first indictment. This motion was granted over the vigorous opposition of the petitioner, and an order of dismissal was entered. Petitioner appealed to the Court of Appeals and, on the Government's motion, that court (one judge dissenting) dismissed the appeal upon the ground that the order appealed from was not a final order. 225 F.2d 329. We granted certiorari, directing that the case be heard both on the merits and on the question of appealability. 350 U.S. 861, 76 S.Ct. 106. Since we conclude that the order in question was not appealable, we do not reach the merits.
1. If the Corpus Christi indictment, is viewed in isolation from the Austin indictment an appeal from its dismissal will not lie because petitioner has not been aggrieved. Only one injured by the judgment sought to be reviewed can appeal, and, regarding the Corpus Christi proceeding as a separate prosecution, petitioner has not been injured by its termination in his favor. Lewis v. United States, 216 U.S. 611, 30 S.Ct. 438, 54 L.Ed. 637. So far as petitioner's standing to appeal is concerned, it makes no difference whether the dismissal still leaves him open to further prosecution, or whether, as petitioner contends, it bars his prosecution elsewhere than in Laredo because the transfer order operated to give him a vested right to be tried only there. Thetesting of the effect of the dismissal order must abide petitioner's trial, and only then, if convicted, will he have been aggrieved. Cf. Heike v. United States, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821.
2. If the Corpus Christi and Austin indictments be viewed together as parts of a single prosecution, petitioner fares no better. For then the order dismissing the Corpus Christi indictment would not be a final order. The considerations underlying the historic requirement of 'finality' in federal appellate procedure require no elaboration at this late date. See Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783. In general, a 'judgment' or 'decision' is final for the purpose of appeal only 'when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined.' St. Louis, Iron Mountain & Southern R. Co. v. Southern Express Co., 108 U.S. 24, 28, 2 S.Ct. 6, 8, 27 L.Ed. 638. This rule applies in criminal as well as civil cases. Berman v. United States, 302 U.S. 211, 212-213, 58 S.Ct. 164, 165-166, 82 L.Ed. 204.
It is argued that the order dismissing the Corpus Christi indictment was 'final because it (a) terminated the prosecution under that indictment, and (b) cannot be reviewed otherwise than upon this appeal. We think neither point well taken. 'Final judgment in a criminal case means sentence. The sentence is the judgment.' Berman v. United States, supra, 302 U.S. at page 212, 58 S.Ct. at page 166. And viewing the two indictments together as a single prosecution, the Austin indictment being as it were a superseding indictment, petitioner has not yet been tried, much less convicted and sentenced. The order dismissing the Corpus Christi indictment was but an interlocutory step in this prosecution, and its review must await the conclusion of the 'whole matter litigated' between the Government and the petitioner namely, 'the right to convict the accused of the crime charged in the indictment.' Heike v. United States, supra, 217 U.S. at page 429, 30 S.Ct. at page 541.