In Re Newell

220 P. 425 | Cal. Ct. App. | 1923

Petitioner was charged with violating section 476a of the Penal Code. It is claimed that there were two informations filed, identical in form and substance; that petitioner was acquitted upon the first; that the court exceeded its jurisdiction in proceeding to trial upon the second, which trial resulted in conviction, and that, therefore, the proceedings were void and petitioner should be discharged.

[1] The application should be denied for the reason that the petition fails to conform to the requirements of section 1474 of the Penal Code in that it is not verified by the oath or affirmation of the party making it. Furthermore, this same question has heretofore been presented to and disposed of upon an application made to the supreme court (Ex parte Newell,188 Cal. 508 [206 P. 61]). Petitioner herein there raised the question of jurisdiction, and the supreme court held that the validity of the new or second information filed could not be attacked on habeas corpus, and further held that if errors had been committed by the lower court the same were reviewable only on appeal. This same subject matter is now under consideration by the supreme court in the pending appeal of People v.Newell, 192 Cal. 659 [221 P. 622] (Crim. No. 2573), on hearing from this court, division two. The application for a writ is denied.

Tyler, P. J., concurred.