From the outset it should be noted that the present prosecution was under North Carolina’s old obscenity statutes G.S. 14-189 and G.S. 14-189.1 which were repealed by the General Assembly 1 July 1971 and replaced by G.S. 14-190.1, et seq. In State v. McCluney, 11 N.C. App. 11, 180 S.E. 2d 419 (1971), this Court held that G.S. 14-189.1 was free from constitutional defect.
[1] G.S. 15-180 provides that “In all cases of conviction in the superior court for any criminal offense, the defendant shall have the right to appeal.” There has been no conviction in the present case. Therefore, the appeal is premature. The order entered at the conclusion of the preliminary adversary hearing to determine whether the materials seized were obscene and lawfully retained as evidence pending trial is not binding on the trial judge and is not appealable.
*533In this respect, the order entered in this case is analogous to and has the same effect as a ruling on a motion to suppress evidence. The materials found by Judge Clark to be obscene were retained as evidence to be used in the pending trial on the merits, and all other material was ordered returned to its owner. Just as a motion to change venue [State v. Henry, 1 N.C. App. 409, 161 S.E. 2d 622 (1968)], and a motion to dismiss charges [State v. Black, 7 N.C. App. 324, 172 S.E. 2d 217 (1970)] are interlocutory orders, a denial of a motion to suppress evidence is not a final judgment. See State v. Fowler, 3 N.C. App. 17, 164 S.E. 2d 14 (1968). G.S. 7A-27(d) makes no provision for an appeal as a matter of right from an interlocutory order in a criminal action. The United States Supreme Court in DiBella v. United States, 369 U.S. 121, 7 L. Ed. 2d 614, 82 S.Ct. 654 (1962), held that orders granting or denying pretrial motions to suppress the evidentiary use in a federal' criminal trial of material allegedly procured through an unreasonable search and seizure are not appealable even if the motion is filed before the return of the indictment. The Court relied upon the dominant rule of criminal appellate practice that a judgment must be final before it may be appealed.
“Orders granting or denying suppression in the wake of such proceedings are truly interlocutory, for the criminal trial is then fairly in train. When at the time of ruling there is outstanding a complaint, or a detention or release on bail following arrest, or an arraignment, information, or indictment — in each such case the order on a suppression motion must be treated as ‘but a step in the criminal case preliminary to the trial thereof.’ Cogen v. United States, 278 U.S. 221, 227, 73 L. ed. 275, 282, 49 S.Ct. 118.” 369 U.S. at 131.
[2] In Privette v. Privette, 230 N.C. 52, 51 S.E. 2d 925 (1949), the North Carolina Supreme Court said:
“As a general rule an appeal will not lie until there is a final determination of the whole case. (Citations omitted.) It lies from an interlocutory order only when it puts an end to the action or where it may destroy or impair or seriously imperil some substantial right of the appellant.”
This rule was quoted with approval in State v. Childs, 265 N.C. 575, 144 S.E. 2d 653 (1965). The defendant appellants in this *534case contend that the order entered affects substantial constitutional rights and thus may be appealed though interlocutory. Even if this appeal were not premature and it could be heard, we are of the opinion that the defendant appellants’ constitutional rights under the First and Fourteenth Amendments to the United States Constitution were not violated by this adversary hearing. There was a seizure of a large number of allegedly obscene books incident to the arrest. The adversary hearing afforded the defendants their constitutional rights under the First and Fourteenth Amendments by preliminarily determining which materials were obscene and should be retained as evidence in the pending trial and which materials were not obscene and should be returned. It does not appear from the record that all the inventory from all three bookstores was seized; nor does it appear that any of the three bookstores closed as a result of the seizure of the materials, which might have effectively deprived the defendant appellants of substantial income. We conclude that defendant appellants’ allegedly obscene property was seized in accordance with the due process clause of the Fourteenth Amendment. By the return of their property preliminarily found not to be obscene, the defendant appellants were left free to exercise their right to expression under the First Amendment.
Since the trial on the merits is still pending and inasmuch as we find this appeal premature, the court’s interlocutory order does not put an end to the action. As noted in State v. Childs, supra, the interlocutory order does not “destroy or impair or seriously imperil any substantial right” of the defendant appellants since they have noted an exception to the entry of the order which may “be considered on appeal from a final judgment adverse to defendant, if there is one.”
Appeal dismissed.
Judges Britt and Parker concur.