People v. Ah Own

Ceockett, J., 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 [607]the demurrer, standing alone, cannot be deemed a final judgment, from which an appeal will lie. But we think the point is not Avell taken. A defective indictment is not subject to amendment, and when decided, on demurrer, to be insufficient, the cause is finally ended. The Code (Sec. 144) defines a judgment to be “the final determination of the rights of the parties to the action or proceedingand it is evident that the final order which decides the matters at issued adjudicates the rights of the partios and ends the litigation, must be deemed a final judgment for the purposes of an appeal. In civil actions, an order sustaining a demurrer to the complaint is not an appealable order, for the reason that the complaint is amendable, and the sustaining a demurrer to it does not end the litigation. It is not a final determination of the rights of the parties. But in a criminal prosecution it is otherwise, and when a demurrer to the indictment is sustained, the action is finally ended in that Court. Nothing more remains to be done. It is true, in proper cases, if the defendant is in custody, the Court may detain him to ansAver another indictment to be found by another Grand Jury. But the first indictment is, nevertheless, finally disposed of by the demurrer, and the order sustaining which may for that reason be properly deemed to be a final judgment.

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.