State v. . Polk

Merrimon, J. The appeal from the judgment of the inferior court was improperly taken. An appeal in a case like this lies only from a final judgment. The judgment of that court overruling the demurrer was simply interlocutory, and did not in any way determine the action. The court ought to have required the defendant to plead to the indictment and proceed with the trial to verdict and judgment. If the verdict of the jury had been adverse to the defendant, he might then have moved in arrest of judgment, and thus have raised every objection to the indictment, including that to the jurisdiction, that the demurrer could enable him to make. If his motion in arrest of judgment had been denied and judgment given against him, then he might have appealed to the superior court, taking up all questions of law raised by his exceptions and the record, and if the jupgment of the latter court upon such appeal, had been adverse to him, then he might properly have appealed to this court. State v. Bailey, 65 N. C., 426; State v. Pollard, 83 N. C., 507; State v. McDowell, 84 N. C., 798. The superior court ought, for the reasons above stated, ito have dismissed the appeal, and the inferior court ought then to have required the defendant to plead to the indictment as we have indicated in this opinion. That is the course yet to be taken. This appeal was improperly taken, and must be dismissed. Appeal dismissed.