In Re Marquez

PRESTON, J.

The above-named defendant, Frank Marquez, was charged, by information containing four counts, with the crime of rape, a felony. He entered a plea of guilty to count one and applied for probation, whereupon the court ordered that proceedings as to that count be suspended and that defendant be granted probation for a period of twenty years, under condition that “the first four years of said probationary period, defendant shall serve at the county road camp. ...”

After serving one year in the county road camp, defendant sued out a writ of

habeas corpus

upon the ground that “any period in excess of one year in the county jail is therefore in excess of the period of confinement in the county jail permitted by section 19a of the Penal Code”. The superior court, in said

habeas corpus

proceeding, thereupon granted defendant a discharge from custody. The People of the State of California then undertook to exercise the right of appeal conferred upon them by section 1506, which was added to the Penal Code in 1927 (Stats. 1927, p. 1061). Said section in part reads:

“An appeal may be taken to the district court of appeal by the people from a final order of a superior court made upon the return of a writ of

habeas corpus

discharging a defendant

after his conviction,

in all criminal cases prosecuted by indictment or information in a court of record. ...”

Upon consideration of the cause the honorable District Court of Appeal, Second District, Division Two, stated that against its better judgment it felt compelled to dis-

[627]

miss the appeal because of the following language found in a recent decision of this court upholding the constitutionality of said section 1506

(In re Alpine,

203 Cal. 731, at p. 745 [265 Pac. 947, 58 A. L. R. 1500]): “It is clear from the language of said section that an appeal is only allowable