People v. Long, Crim. Nos. 402 and 405

Crim. Nos. 402 and 405 | Cal. | Jul 21, 1898

TEMPLE, J.

These two appeals involve the same questions, presented upon facts in all respects similar. Each is taken from an order sustaining a demurrer to an indictment for perjury.

There are no bills of exceptions in the transcript, and respondents make the point that there are here no records upon which the appeals can be heard.

There does not seem to be any judgment-roll or record in a criminal case except upon conviction. (Pen. Code, sec. 1207.) It is by virtue of that section only, making the minutes of the court a part of the judgment-roll, that the minutes get into and become a part of the record on appeal. Section 1007 of the Penal Code provides that upon a demurrer being submitted the court shall give judgment either allowing or sustaining it, and an order to that effect shall be entered upon the minutes. Conceding that this order can be regarded as a final judgment in-a case like this, where the case is ordered to be resubmitted, the statute does not provide for a judgment-roll or a record of any kind, except through a bill of exceptions. If the order is a judgment, still the exceptions to the ruling, though properly enough entered in the minutes, are not a part of the judgment rendered by the court.

Sections 1172 and 1174 of the Penal Code provide for exceptions and for a bill of exceptions to this very ruling. It may well be held that these provisions are exclusive of any other mode of obtaining a review, even when there is a judgment-roll. But however that may be, there can be no possible doubt about it in a case like this, where there is no other mode provided for a record upon appeal.

There being no legal record from which we can determine whether the court erred, the orders or portions of the orders appealed from are affirmed in each case.

McFarland, J., and Henshaw, J., concurred.