Majority
p. 473[Crim. No. 156. Department One. July 24, 1896.] THE PEOPLE, etc., Appellant, v. L. E. RICHTER, Respondent.
Headnote
Criminal Law—Setting Aside Information—appeal—Nonappealable Order—Dismissal.—An order setting aside an information accusing a defendant of a felony is not appealable, and an appeal by the people therefrom must be dismissed.Appeal from an order of the Superior Court of Lassen County setting aside an information. W. T. Hasten, Judge.
Defendants were accused, by information, of the crime of altering the brand on a certain steer, with intent to
p. 474FTo appeal lies from an order setting aside an information. (Pen. Code, sec. 1238.)
steal the same. Defendant Richter moved "the superior court to set aside the information on the grounds that before the filing of the said information he had not been legally committed by a magistrate: 1. In that there was not sufficient evidence produced before the magistrate to show the commission of a public offense, and that there was not sufficient cause to believe the defendant, L. E. Richter, guilty thereof; 2. That the order of commitment by the magistrate was not indorsed upon the written depositions taken at the preliminary examination. The court declined to pass on the first ground, but allowed the motion on the second ground. Further facts are stated in the opinion of the court.
W. F. Fitzgerald, Attorney General, and N. J. Barry, District Attorney, for Appellant.
Shinn & Shinn, for Respondent.
After the district attorney had filed in the superior court an information against the defendant accusing him of a felony, the defendant moved the court to set the same aside on various grounds, and his motion was granted. From this order the people have appealed. The defendant objects to the hearing of the appeal upon the ground that the order is not appeal-able. Section 1238 of the Penal Code prescribes the cases in which an appeal may be taken by the people,, and the present order is not included therein.
The appeal is dismissed.