Reset A A Font size: Print

District Court of Appeal, Fourth District, California.


Cr. 291.

Decided: March 19, 1936

U. S. Webb, Atty. Gen., Frank Richards, Deputy Atty. Gen., and Elmer W. Heald, Dist. Atty., and R. I. French, Deputy Dist. Atty., both of El Centro, for the People. Edgar B. Hervey, of San Diego, Hugh S. MacKinnon, of Calexico, and R. B. Whitelaw, of El Centro, for respondents.

This is a motion by defendant to dismiss an appeal taken by the people from a certain order made and entered by the trial court or to affirm the order. The ground of the motion is that the order from which the attempted appeal has been taken is not an appealable order.

The order sought to be attacked by the appeal is an order dismissing the action on motion of the defendants after a verdict of conviction had been returned against them and after the trial court had granted their motion for a new trial.

Section 1238 of the Penal Code specifies the cases in which an appeal may be taken by the people. The order from which the people have here attempted to appeal is not included in the orders designated in the above-mentioned section. It is not an order setting aside or in any manner attacking the indictment returned against the defendants and upon whose allegations they were tried. It is neither an order arresting judgment nor one made after judgment, since it is conceded that no judgment was pronounced. The motion is therefore in order and must be granted. People v. Knowles, 27 Cal.App. 498, 506, 155 P. 137; People v. Cordosco, 77 Cal.App. 780, 246 P. 461; People v. Newman, 113 Cal.App. 679, 298 P. 1044.

The attempted appeal from the order is dismissed.

JENNINGS, Justice.

We concur: BARNARD, P. J.; MARKS, J.

Copied to clipboard