In Re Flodstrom

SHENK, J.

— This is a proceeding in habeas corpus. In a complaint filed in the Municipal Court for the San JoseAlviso Judicial District, County of Santa Clara, the petitioner, Shirley Ann Flodstrom, was charged with the murder of her infant son. The preliminary examination was held on October 22, 1954. The petitioner was held to answer to the superior court where she moved to set aside the information under Penal Code, section 995, which provides that an information “must be set aside by the court in which the defendant is arraigned, upon his motion” if before the filing of the information “the defendant had been committed without reasonable or probable cause.” The motion was denied.

The petition herein was filed in the District Court of Appeal, First District, Division Two. It alleged that there was not sufficient competent evidence before the magistrate to support the holding order. In this she was sustained. The court considered the showing made by the petitioner and the return to the writ, concluded that the petitioner was

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in custody without warrant of law and pursuant to an opinion filed on December 14, 1954, ordered her discharge. (134 Cal. App.2d 871 [277 P.2d 101].) On a petition for hearing filed by the attorney general the matter was transferred to this court. We have concluded that the order of transfer was improvidently made and that the proceeding should be dismissed.

Prior to 1927 there was no appeal from an order of the superior court discharging a petitioner in a proceeding in habeas corpus

(Matter of Hughes,

159 Cal. 360 [113 P. 684]) nor was there any provision in law for a petition for hearing in the Supreme Court after an order of a District Court of Appeal discharging a petitioner in such a proceeding originally instituted in that court.

(Matter of Zany

(1913), 164 Cal. 724 [130 P. 710].) This was said to result from the concurrent constitutional power in habeas corpus vested in the superior court, the District Courts of Appeal, and the Supreme Court. It was stated in the Zany ease at pages 726 and 727: “The result has been that, with reference to such [habeas corpus] proceedings, the supreme and superior courts, to each of which was given the power to issue writs of habeas corpus, stood upon the same plane, neither being inferior to the other in any other sense than that a superior court in determining any such matter would naturally. follow a precedent established by the highest court in the state, if any such precedent had been established. It however had the