Opinion
Crim. No. 35.
June 14, 1906.
APPEAL from an order of the Superior Court of Santa Clara County, sustaining defendant's demurrer to an indictment.
The facts are stated in the opinion of the court.
James H. Campbell, District Attorney, for Appellant.
Nicholas Bowden, for Respondent.
This is an appeal from an order sustaining defendant's demurrer to the indictment. The order also directs that the case be submitted to the next grand jury.
The transcript on appeal contains no bill of exceptions, but consists of: 1. The indictment; 2. Demurrer of defendant to indictment; 3. Minute order allowing demurrer; 4. Notice of appeal; 5. Certificate of clerk of trial court.
It is objected by respondent that without a bill of exceptions there is no proper record before this court, and in support of this contention cites us to People v. Long, 121 Cal. 494, [53 P. 1097], which was an appeal, without a bill of exceptions, from an order sustaining a demurrer to an indictment, and ordering the case submitted to the grand jury. It was there held that without a bill of exceptions no review of the action of the court in sustaining a demurrer to the indictment could be had upon an appeal by the people from the order sustaining the demurrer. The procedure followed in this case is identical with that of the Long case, and the doctrine laid down in the latter case governs this case. There being no legal record before us from which we can determine whether the court erred, the order appealed from is affirmed.
Cooper, J., and Harrison, P. J., concurred.