People v. Cusick

[189]

HART, J.

The defendant was informed against by the district attorney of Tuba county for the crime of criminal libel alleged to have been committed upon one W. C. Wilkins. A demurrer upon the ground that the facts stated in the information do not constitute a public offense and that said information “does not substantially or at all conform to the requirements of sections 950, 951 and 952 of the Penal Code” was sustained by the trial court, and the defendant ordered discharged and his bondsmen released.

It is from the judgment upon the demurrer that this appeal is taken by the people.

Upon the oral argument of the cause before this court, the point was made for the first time that, as the bill of exceptions does not contain the information and the grounds of the demurrer, the ruling of the court below cannot be reviewed.

The transcript contains the information, the demurrer, minutes of the arraignment and a purported bill of exceptions which, as respondent declares, does not embrace either the information or the demurrer or the grounds thereof. We are therefore without any properly authenticated record from which we can determine whether the court erred in its ruling on the demurrer.

This case is substantially similar in all respects to the cases of

People

v.

Long,

121 Cal. 494, [53 Pac. 1097], and

People

v.

Druffel,

3 Cal. App. 731, [86 Pac. 907], In the former case the supreme court says: “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.”