People v. Glass
Before: Kerrigan
Synopsis
Appeal—Demurrer to Indictment.—On a Motion for Permission to file a certified copy of a demurrer to the indictment in the appellate court, on the ground that the demurrer should have been made a part of the record by virtue of Penal Code, section 1207, whether the demurrer is properly a part of the record will not be decided in advance of the hearing of the appeal, but the motion will be granted and the question decided on the hearing.
KERRIGAN, J. Upon suggestion of diminution of the record the appellant moves for permission to file a certified copy of the demurrer to the indictment. He claims that under section 1207 of the Penal Code a copy of the demurrer should have been included by the clerk of the trial court in making up the record. Respondent, on the other hand, contends that the demurrer was properly omitted. It is unnecessary for us to pass upon this question at this time. We will permit the certified copy of the demurrer to be filed, subject to further consideration upon the determination of the appeal. If at that time it becomes necessary to pass upon the points raised by the demurrer, we will then con[358]sider and determine the question whether or not the demurrer to the indictment is a part of the judgment-roll; and, if we determine that it is not, we will not consider it in this case.
It is therefore ordered that the appellant may file with the clerk of this court a certified copy of the demurrer to the indictment.
We concur: Cooper, P. J.; Hall, J.
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