Crim. No. 1649. | Cal. | Jul 31, 1911
Lead Opinion
The petitioner shows that the minute order of the superior court sustaining his demurrer to the information was in the following language: —
"The demurrer of the defendant to the information on file herein having been heretofore argued and submitted to the court for its decision — It is by the court ordered that the demurrer to the information be, and the same is, hereby sustained, and leave is granted to the district attorney to file another information;" that upon the presentation of a second *389
information his motion to quash, annul, and set it aside, was denied. Wherefore, he has sued out this writ, contending that the second information was filed against him, and is being prosecuted against him without authority of law. (Ex parte Williams,
The return to this writ, however, shows that the minute order here assailed did not correctly set forth the order which the court actually made in the premises, and that the order actually made was in substantial conformity to the provisions of section
Here was the exercise of the judicial power, which, as has been said, the law contemplates the court — and not the district attorney — should make. This judicial power having, in fact, been exercised by the court, a substantial compliance with the statute is shown.
The writ is therefore discharged and the prisoner remanded.
Lorigan, J., and Melvin, J., concurred.
Concurrence Opinion
I concur. But I wish to suggest to the court below that it should correct its minutes so that they may show the order directing the filing of a new information.
Concurrence Opinion
I concur in the judgment. The ruling of the court seems to be based upon a supposed distinction between this case and Ex parteWilliams,
Angellotti, J., concurred. *390