Matter of Application of Hughes

117 P. 437, 160 Cal. 388, 1911 Cal. LEXIS 526

Opinions

HENSHAW, J.

The petitioner shows that the minute order of the superior court sustaining his demurrer to the information was in the following language:

“The demurrer of the defendant to the information on file herein having been heretofore argued and submitted to the court for its decision—It is by the court ordered that the demurrer to the information be, and the same is, hereby sustained, and leave is granted to the district attorney to file another informationthat upon the presentation of a second information his motion to quash, annul, and set it aside, was denied. Wherefore, he has sued out this writ, contending that the second information was filed against him, and is being prosecuted against him without authority of law. (Ex parte Williams, 116 Cal. 512, [48 Pac. 499]; People v. Nogiri, 142 Cal. 596, [76 Pac. 490].)

The return to this writ, however, shows that the minute order here assailed did not correctly set forth the order which the court actually made in the premises, and that the order actually made was in substantial conformity to the provisions of section 1008 of the Penal Code. The minute order, as entered, omitted a very essential feature of the order which the court actually made, to the effect that it, the court, was of the “opinion that a new information should be filed, which would do away with the objection and be sufficient in all respects.”

Here was the exercise of the judicial power, which, as has been said, the law contemplates the court—and not the district attorney—should make. This judicial power having, in fact, been exercised by the court, a substantial compliance with the statute is shown.

The writ is therefore discharged and the prisoner remanded.

Lorigan, J., and Melvin, J., concurred.