People v. Ehrhart

WARNS, J. pro tem.

*

On June 8, 1960, a complaint was filed in the Justice Court for the Red Bluff Judicial District in the county of Tehama, charging respondents Bhrhart and McWilliams and one Philbrook with a violation of section 702 of the Welfare and Institutions Code (contributing to the delinquency of a minor), a misdemeanor.

A warrant was issued and the respondents and Philbrook were arrested. They furnished bail and were released. When they appeared before the justice court, Philbrook pleaded guilty to the offense charged and was certified to the juvenile court for further proceedings. By stipulation the preliminary hearing of Bhrhart and McWilliams was continued to June 27, 1960. On June 16, 1960, the Grand Jury of Tehama County returned an indictment charging Bhrhart and McWilliams with the same misdemeanor which had been charged in the complaint issued out of the justice court. A bench warrant was issued. Respondents were again arrested and were again required to post bail in order to obtain their release.

After the return of the indictment, the complaint pending in the justice court against respondents was dismissed on motion of the district attorney “on the grounds that the grand jury has indicted the defendants for the same offenses.” Following the dismissal of the complaint in the justice court, and before entry of a plea, respondents herein moved to dismiss the indictment under section 1387 of the Penal Code, which provides that “ [a]n order for the dismissal of the action ... is a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony.” The motion was granted and the People have appealed.

The respondents have moved that the appeal be dismissed on the ground that the People are attempting to appeal from a nonappealable order.

We have concluded that the order in question is of a character from which the People cannot appeal, even though the trial court may have erred in granting the motion.

Section 1238 of the Penal Code provides for an appeal by the People in the following cases only:

“1. From an order setting aside the indictment, information, or complaint;

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