People v. Romero

[669]

DORAN, J.

The defendant herein, who was charged by information with violating the state Narcotic and Drug Act, was tried by the court, sitting without a jury, and found guilty. The court also found against the defendant on a plea of “Once in Jeopardy”. Appeal is from the judgment and from an order denying a motion for a new trial.

Two informations were filed, charging identical offenses. The first one, which was filed on August 8th, was dismissed on motion of the district attorney on August 22d. The minute record of the order is as follows: “Deputy District Attorney C. H. Matthews and the defendant with his counsel, J. H. Hearn, present. On motion of the District Attorney and in the interest of justice, this case is dismissed. Defendant is released.”

On September 10th the second information was filed. To this second information defendant entered his pleas of “Not Guilty” and “Once in Jeopardy”.

Appellant earnestly contends that the dismissal of the first information was a bar to further prosecution for the reason that the minute order failed to state the reasons for the dismissal, as required by section 1385 of the Penal Code.

People

v.

Disperatí,

11 Cal. App. 469 [105 Pac. 617], is relied upon for authority in support of this contention. In the Disperati case,

supra,

no reason for the order was specified in the minutes, and the court held as follows: “ . . . the statute provides that the order ‘as provided in this chapter’ is not a bar, and the mandate in reference to said order is that it must contain the ‘reasons of the dismissal’. We have no authority to disregard this requirement or to hold that it is merely directory. The proceeding is somewhat harsh, and imposes an additional burden upon the defendant, and no substantial departure from the plain provision of the statute should be tolerated.”

The respondent points to the case of

People