39 Cal. 604 | Cal. | 1870
delivered the opinion of the Court, Sprague, J., and Temple, J., concurring :
This is an appeal from an order sustaining a demurrer ■to an indictment for kidnapping. The order sustaining the demurrer is in the usual form; but no other or further order or judgment was entered, and the appeal is taken from this order, treating it as a final judgment or disposition of the case. The objection is urged that no appeal will lie from •an order sustaining a demurrer to an indictment; that'to ■entitle, the State to- an appeal, there must be a formal and final judgment; and it' is claimed that the order sustaining
The indictment Avas found in El Dorado County, and is properly entitled in that county, and avers that the defendants, “at the County of El Dorado and County of Placer,” did unlaAvfully, forcibly and feloniously assault, beat, bruise, ill treat, steal, take and arrest one Ah Sing at Mud Flat, in Placer County, Avitliout any process of any Court, and without authority of laAV, and did forcibly, unlawfully, and feloniously steal, take, arrest and carry him away out of and from Placer County, against liis will, and did, in like manner, carry him into El Dorado County, AAith intent to kidnap him.
The indictment is assailed on three grounds, to wit: First—That it alleges the offense to have been committed in two counties. Second—That it includes two separate and distinct offenses, viz: assault and battery and kidnapping.
Nor is the objection that the indictment includes two separate offenses well taken. The statement that in carrying out their purpose to kidnap Ah Sing, the defendants beat, bruised and ill treated him, is only a narrative of the circumstances which attended his arrest and capture by them. It is but an explanation of the method by which their designs were accomplished, and, at most, it would only be deemed surplusage. In an indictment for highway robbery, if it be charged that the defendant assaulted his victim on the highway, knocked him down and robbed him, we apprehend no one would claim that the indictment was bad, as including two separate offenses. It was all one transaction, - and constituted but one offense. So in this case, the assault and battery was only a part of the forcible and unlawful arrest and abduction, and was evidently intended to be so charged in the indictment. The indictment, though not very artistically framed, is, we -think, sufficiently certain, and free from ambiguity.
Judgment reversed and cause remanded, with an order to the County Court to overrule the demurrer.
Wallace, J., delivered the following dissenting opinion, Rhodes, C: J., concurring:
I agree with Mr. Justice Crockett, that but one offense is charged in the indictment in question, but am of opinion
I am, therefore, of opinion that the appeal should be dismissed,