159 P. 452 | Cal. Ct. App. | 1916
Petitioner was informed against by the district attorney of Sonoma County for the crime of obtaining money under false pretenses. Upon demurrer to the information the court made the following order, January 10, 1916: "This cause came on regularly for the defendant to plead. The district attorney and Phil Ware and R. L. Thompson, Esq., being present, it being agreed that defendant was present; Whereupon it is ordered by the court that the demurrer filed herein be and the same is hereby sustained, and the court directs that the district attorney may file a new information on the proceedings heretofore had, or any other proceedings that the district attorney may elect, as prescribed by section
Pursuant to said order the district attorney procured the indictment of petitioner by the grand jury for the same offense as that charged in the information, and petitioner was thereupon arrested upon a bench warrant and taken into custody by the sheriff, and is now held in imprisonment thereunder.
Petitioner seeks his discharge by writ of habeas corpus on the ground that said order was insufficient to justify the district attorney to proceed further in the action, for the reason that said order left the matter wholly in his discretion, whereas section
We think the order in question, fairly construed, was sufficient authority to justify the further proceedings taken by the district attorney.
The court filed an opinion, on January 10, 1916, giving its reasons for sustaining the demurrer. The concluding paragraph reads: "The court will sustain the demurrer to the information. I will make an order provided by section
As we understand the record, the order entered was that first above quoted. But whether that be treated as the order in the case or the statement made in the opinion be the order, we still think that the district attorney was directed by the court to proceed further under section
The writ is discharged and the prisoner remanded to the custody of the sheriff.
Hart, J., concurred.