In Re Dutton

PLUMMER, J.

This cause is before us upon motion of petitioner to dismiss the appeal attempted to be taken by the People from an order made and entered in the superior court discharging the petitioner from the custody of the officers of the Mendocino State Hospital.

The record shows that the petitioner, after having been arraigned and tried on a charge of murder, was found not guilty by reason of insanity, the verdict returned on the twenty-eighth day of August, 1930. Thereupon, the petitioner was, by the trial court, committed to the state hospital at Napa for the insane, to be held there as an insane person, pursuant to the provisions of section 1026 of the Penal Code, this order being made on the ground that the petitioner had not at the time of the trial recovered his sanity. Thereafter, and after being committed to the state hospital at Napa, the petitioner was transferred to the Mendocino State Hospital fpr the Insane. After the expiration of one year from the date of his commitment, the petitioner herein applied to the Superior Court of Mendocino County for release from said state hospital on the grounds that he had recovered his sanity. The application was in the form of a petition for a writ of

habeas corpus.

A writ was issued following the filing of the petition just referred to, hearing had, and an order made discharging the petitioner. From this order the People gave notice of an appeal. As stated, the cause is before us upon motion to dismiss such appeal.

It is admitted by both appellant and petitioner that if the proceeding referred to was in fact a proceeding by way of

habeas corpus,

no appeal lies. The only provision allowing an appeal in criminal cases, from an order granting a writ of

habeas corpus,

is found in section 1506 of the Penal Code. That this section does not apply in cases of

[449]

this character is definitely decided in the case of

In re Merwin,