*1 еxtent of one thousand dollars... Such the homestead could not be sold under execution judgment other than one those enumerated in section of the Civil Code, taking steps prescribed without section 1245 seq.” et
In the case bar disregarding the recital that the claim- ant was the head of family, treating surplusage, it as we have a declaration of every homestead which contains ele- required by ment Code, uрheld Civil and which would be question without in any give court. To this effect to the right home, instrument secures to the defendant to a which the Constitution of (article XVII, our state 1) enjoins legislature protect. therefore сoncluded that declaration homestead given in this construction; case should be a liberal that the question surplusage recital in unnecessary; there was a valid the property homestead attеmpt defeated creditor to take title at an execution sale. affirmed; deny-
The from the order ing a new trial is dismissed. J.,
York, P. and Doran, J., concurred. Appellant’s petition hearing by for a the Supreme Court April 23, 1942. was denied Dist., No. 3527. Second Div. One. Feb.
[Crim. 1942.] PEOPLE, THE Respondent, FRANK DUNCAN, Appel
lant. *2 Appellant.
Bertram H. Ross for Warren, Earl Attorney-General, Richards, and Frank Deputy Attorney-General, Respondent. for
YORK, P. J. This is an denying from an order motion for a trial, appellant’s new apрeal from the having been upon by dismissed respondent motion made for the reason that appellant’s application for probation granted by the and, therefore, trial court no was ever en- tered the instant (People Duncan, cause. v. App. 48 Cal. 642 (2d) 708].) Pac. [120 Upon arraignment in the trial court and before he pleaded guilty” “not to grand the crime of theft, charged as in the information, appеllant made his motion to set aside said information under section 995 of the Penal upon Code the ground that he was not properly committed before com- mitting magistrate, which motion was denied.
Appellаnt states upon appeal the issues as follows: “No question is raised concerning sufficiency of the evidence upon the trial of this case. The sole attack on relates to sufficiency prоceedings upon preliminary hear- ing, by proceedings to that end for diminution of the transcript record the preliminary proceedings is before this court. Appellant’s
“It position jurisdiction is felony casе Superior attaches only, as the Court result of indictment, Jury Grand or an upon information filed based a preliminary hearing upon showing which there has been a of public cause to believe that a offеnse has been committed.”
186
It argued by appellant further proof “The commission public Magistrate requisite offense before a by Superior exercise and there why no reason stand trial he has defеndant must where improperly been Bomar, App. (People committed. Cal. 378.”) 758] appears upon to be law that an attack either indictment or an cannot be this considered upon motion ordеr 370, 371, early People Turner, In the case of “Objections sufficiency go was stated: form indictment, of the tribunal senting may same, demurrer before issue be presented by of fact is plea. irregularities in procеedings, resulting
“Errors and presentation can avail- of the indictment. . . able to defendant to set aside the indict- plea before ment. demurrer,
“The the Court action of *3 only in indictment, motion to aside can be reviewed set the judgment. appellate appeal on from the final the Court “Objections by may before which be demurrer by may after plea, further be made available verdict of on this judgment; in of the action the Court" arrest аnd judgment. only from the appeal motion can be on reviewed seen, it a for a new trial “Thus, be that motion will which, indictment, upon with suf- a supposes sufficient valid legal legal allegations, its a support in of еvidence ficient pronounced. valid, binding judgment may be and a verdict upon or authorize a re-trial contemplate not The statute does a indictment; hence, a motion for an or invalid insufficient objеction any to the properly upon be based trial cannot indictment, any validity errors sufficiency or the of issue of fact occurring proceedings the before irregularities in indictment, object the gоod a joined by plea and sufficient trial simply enable the a re-trial purpose of and have claimed to irregularities errors and to avoid the rights prejudice trial on the former the occurred tо the defendant.” secured 742, 743 Sanchez, App. 23 Cal. People [139 In case v. the of brief, in suggestion appellant’s 820], held: it “The
Pac. considered, since information, cannot of the a defect in
187 Turner, judgment. v. (People there is no from the Code, 39 370; 1012, 1239.)” Pen. Cal. secs.
Again People Johnston, late App. in case of 37 the Cal. (2d) 606, (2d) 608 Pac. 307], “Appellant it was held: [100 filed to the which a demurrer information was overruled overruling the Thе a de- trial court. court in action of the murrer can be upon reviewed in this court People from judgment. Turner, 370; a 39 (People v. Cal. have Sanchez, 820].) 23 we App. Cal. 742 Pac. Since [139 judgment, before us no cаnnot consider from we appellant’s upon attack information.”
In of In re Basham, App. case Cal. of (2d) 781], Pac. after conviction petitioners [74 where robbery degree, crime of for a writ applied in the first not corpus, they habeas “alleging in substance were that charge of legally particular a magistrate committed on the they robbery information, forth in set which and to however, pleaded guilty,” settled, “It was held: well that in one convicted precluded proceeding raising in that corpus objection habeas prior he magistrate was not examined or answer held to in filing information; of such filing proceed gives superior formation provides section 995 of the Penal Code trying the exclusive method of of whether necessary preliminary information is founded on exami by way information. nation, motion to set aside the (Ex 1119] ; 13 parte McConnell, 83 Cal. 228.)” Jur. committing case, appellant instant
In the moved the magistrate complaint ground on the that there to dismiss the hearing; preliminary proof failure complete was a court, appellant upon arraignment superior 995 of the aside the information under motion to set com ground properly he was Penal Code finally, after magistrate, committing mitted before *4 fоr jury application made and before he the verdict for arrest of appellant made his motion probation, of had no ground the court on were All motions charged in the information. these offense probation. on placed appellant was denied, and sufficiency of to question as raises no appellant Since finding him of the jury, support verdict the evidence guilty of the offense chаrged information, since in the the action of denying the trial in motion appellant’s to set aside the information Penal under section 995 of the Code can he only upon judg- reviewed appeal from thе ment, the order denying for motion a new trial is affirmed.
Doran, J., concurred.
WHITE, J., Dissenting. I dissent.While the cases hold a defect in the information or the action of in over- the court ruling a demurrer can be reviewed on when, here, and not аs is taken from the order denying a motion for trial, nevertheless, a the instant case the record shows that when the first witness was called at the trial gave any and before such witness testimony, objected defendant any to the introduction of evi- dence ground on the he had been committed magistrate probable without reasonable or cause. Conse- quently, we any are not here confronted with the review of impairment defect or other appearing upon the face information, but a a with review of motion which amounted a challenge my opinion, court. In denying ruling correctness of the such motion is rеview- able on from an order a for newa trial, presenting, appeal does, as such an a of law ruling involved a the court during at and (Pen. Code, 1259.) making sec. Prior objection just mentioned to the of any еvidence, introduction defendant had made his motion under 995 of the Penal Code information, to set aside the in support thereof offered transcript testimony in evidence the taken at the liminary examination, transcript and which is now before us, objection as it was before the trial court at the time made to the introduction of any evidence. Greenberg Superior Court, (2d)
The case recently 713], Supreme decided our Court, authority grand the statement a jury that when indicts person presentation without of evidence to con- him nect with commission charged, of the crime it ex- authority, ceeds its and the indictment rеturned is void and jurisdiction upon confer ineffectual per- a court to charged. By son for token, may the offense same committing magistrate said person that where holds a proper cause thеrefor, to answer without *5 predicated upon such commitment is void equally superior jurisdiction upon ineffectual to confer in- try charged person court to such for the offense ? formation preliminаry
From a review at the adduced evidence examination, attempt apparent is at that no once allegedly prove representations made to falsity defendant, made propеrty nor to establish admittedly complaining received witness was money fact worth the me paid therefor. seems to she charge these are essential and material elements against appellаnt gravamen I form its core. am strongly opinion evidence preliminary establishing examination falls far short probable required cause commitment of the magistrate. defendant for trial Such superior was without the de- (Greenberg fendant Superior Court, supra), ruling and the of the court on appropriately made at trial challenging my the court’s is in opinion review- able on from the order the motion for a new Therefore, such order should be reversed. petition Appellant’s hearing by for a Supreme Carter, J., was denied March 1942. hearing. voted for a Dist., No. 12733. Second Div. Three. Feb. 26, [Civ. 1942.] al., PANSY M. RIPPE Respondents, et OF CITY LOS (a Municipal Corporation), ANGELES Appellant.