People v. Stacey

34 Cal. 307

Opinion

By the Court, Sanderson, J.:

This is substantially like the case of The People v. Hidden, 32 Cal. 445.

A motion to set aside an indictment for any cause must be made before the defendant pleads or demurs. (Crim. Pr. Act, Secs. 277-79.) If not so made the defendant is precluded from afterwards taking the objections which he is allowed to present on such motion. (Sec. 280; People v. Freeland, 6 Cal. 98; People v. Lawrence, 21 Cal. 368; People v. Lopez, 26 Cal. 112; People v. King, 28 Cal. 272.)

Whether the defendant was in a position to have taken advantage of any informality of the Court in the formation of the Grand Jury the record fails to show; hut conceding that he was, he had pleaded to the indictment, without interposing any objection to the Grand Jury, and thereby waived whatever objections may have existed.

The action of the Court in setting aside the indictment and discharging the defendant without day was a final disposition of the case, and therefore a final judgment, within the meaning of the statute in relation to appeals in criminal cases. (Crim. Prac. Act, See. 481.) The proof of service of the notice of appeal is also sufficient. (Sec. 488.)

Judgment reversed and cause, remanded for further proceedings.