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District Court of Appeal, Third District, California.


Cr. 1681

Decided: July 05, 1939

Earl Warren, Atty. Gen., and J.Q. Brown, Deputy Atty. Gen., for the People. Edgar B. Hervey, of San Diego, and Walter T. Tsukamoto, of Sacramento, for respondent.

Defendant was convicted, before a jury, of murder in the second degree. The court granted a motion for new trial, and the People now appeal from the order.

Defendant now moves this court for an order dismissing the appeal, or in the alternative affirming the order. No statute or precedent is mentioned to support the procedure. Defendant's ground is that the action of the trial court was entirely discretionary, and that the record shows no abuse of such discretion. In the first place we find no such procedure applicable to a criminal case, and in the second place, we believe that the opening brief of the People has sufficient merit to require an investigation of the entire record, something which is not contemplated on a motion of this character.

The motion is denied.


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Docket No: Cr. 1681

Decided: July 05, 1939

Court: District Court of Appeal, Third District, California.

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