206 P. 487 | Cal. Ct. App. | 1922
The defendant was indicted by the grand jury of Tehama County for the crime of felony embezzlement. The defendant demurred to the indictment on the ground, among others, that the facts therein stated do not show the crime of embezzlement or the commission of any offense, and the court sustained the demurrer.
The district attorney appeals from the order sustaining the demurrer.
The defendant has moved to dismiss the appeal on the ground that the same was not taken within the time prescribed by law.
Section
The record discloses that the order sustaining the demurrer was made and entered in the minutes of the court on the twenty-ninth day of November, 1921, and that the district attorney, on the fifth day of December, 1921, appeared in court and thus attempted to take an appeal from the order sustaining the demurrer, as follows: "District Attorney, M. J. Cheatham, now announces that this being the first Law Day and the first time when he was present in court since the making of the order sustaining the Demurrer to the indictment in the above entitled action, which order *112 was made in his absence, that the plaintiff now appeals to the District Court of Appeal, Third Appellate District, of the State of California, from the order sustaining the Demurrer to the Indictment in the above entitled action."
[1] Assuming that the order sustaining the demurrer is itself tantamount to a judgment on said demurrer, it is clear that under section
[2] But a more serious proposition arises upon the question whether there was, in fact, any action by the trial court upon which, as a matter of law, an appeal may be predicated.
Section
"An indictment or information may be amended by the district attorney without leave of court, at any time before the defendant pleads. Such amendment may be made at any time thereafter, in the discretion of the court, where it can be done without prejudice to the substantial rights of the defendant. An indictment cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. If a demurrer is sustained and an amendment is not allowed, or if allowed, is not made, within such reasonable time as the court may fix, the court shall give a judgment of dismissal, which shall be a bar to another prosecution for the same offense. The defendant shall thereupon be discharged, unless the court directs the case to be submitted to the same or another grand jury, or directs a new information to be filed; provided that after such order or resubmission, the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases."
It will thus be noted that under the existing law the district attorney has the right to amend an indictment or information without leave of court at any time before a plea to the charge by the defendant, provided, of course, the amendment does not change the offense charged or does not involve matters of substance, but only matters of form. (People v. Anthony,
Our conclusion is that the attempted appeal here is futile and that this court is without jurisdiction to review the purported record before us.
We may add that the attorney-general did not at the oral argument seriously resist the motion to dismiss the appeal, probably being of the opinion that the attempt to bring the matter before this court was not legally successful. No briefs have been filed herein by either side. We have, therefore, been guided in our conclusion entirely by the code sections themselves and what little light is to be gathered from the earlier decisions, cited above, which, as we have shown, were rendered before section
The motion to dismiss the appeal is granted.
Burnett, J., and Finch, P. J., concurred. *115