People v. Glass

99 P. 553, 7 Cal. Unrep. 357, 1908 Cal. App. LEXIS 364

Opinion

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 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.