
    The State, Appellant, v. Stegman.
    Criminal Law: practice: appeal. The state cannot appeal from the judgment of the court sustaining a demurrer to two counts of an indictment containing three counts relating to the same transaction. where one good count is left.
    
      Appeal from Jefferson Circuit Court. — Hon. J. L. Thomas, Judge.
    Appeal dismissed.
    
      B. G. Boone, Attorney General, for the state.
    The trial court erred in sustaining the demurrer. The indictment charges the crime in the substantial language of the statute, and is sufficient.
    
      Wislizenus & Kleins chmidt and Dinning & Byrns and Williams for respondent.
   Norton, C. J. —

The indictment in this case consists of three counts, each relating to the same transaction, the first two of which are founded upon Revised Statutes, section 1247, and the third on section 1250. A demurrer was interposed to the first and third counts of the indictment and overruled as to the second count. Prom this action of the court the state has appealed and a majority of the court are of the opinion that the appeal is premature and should be dismissed, for the reasons that, Tinder the statute, the state is only allowed an appeal either from the judgment of the court sustaining a motion to quash an indictment, or from its judgment sustaining a demurrer thereto ; and that inasmuch as in this case the demurrer to the indictment was not sustained to the indictment, but only to two counts thereof, leaving one good count, the appeal cannot be allowed. *

All concur, except Black, J., and Norton, C. J.  