People v. Serrano

THOMSON, J.,

pro

tem.

This is a motion to dismiss an appeal by the People from an order of the Superior Court of Riverside County setting aside an information which charged the defendant and respondent with the crime of escape from jail. The motion is made on the ground that the appeal was not taken at the time or in the manner provided for in the Penal Code of California.

The transcript shows the following facts: On Saturday, August 29, 1931, the chief of police of the city of Corona

[59]

was requested by one Holbrook to arrest respondent because he had given him a bad check. The chief of police, with a city traffic officer and Holbrook, went to respondent’s home where Holbrook identified him, and then the officers took respondent to the home of one Enos, who also identified respondent as one who had passed bad cheeks. Whereupon the officers placed respondent under arrest and then took him to the city jail, where he was booked on a charge of “suspicion of forgery” and placed in jail at about 4:30 o’clock in the afternoon. The respondent remained in jail Saturday night and Sunday and was last seen there Sunday, August 30th, at about 5:30 in the afternoon. On Monday morning he was not there. No complaint was filed against respondent until Monday morning, August 31st, after his escape.

In the superior court the respondent moved to set aside and quash the information on five grounds, the substance of which is as follows: (1) That the transcript of the preliminary examination did not support the allegations of the complaint filed in the justice’s court; (2) that the testimony taken at the preliminary examination does not support the charges set forth in the information; (3) that there was no testimony at the preliminary examination showing that defendant was charged with a felony at the time of the escape; (4) that the trial court does not have jurisdiction of either defendant or the cause of action; and (5) that the justice’s court was without jurisdiction to commit the respondent to the superior court for trial.

The record discloses that, at the conclusion of the argument on respondent’s motion to set aside the information, a discussion was had by the court, Mr. French, deputy district attorney, and Mr. Seymour, counsel for respondent, after which the following proceedings were had: “The Court: I think in this case that there is no reason why they did not file a complaint. The testimony shows Mr. Holbrook said he gave him a ‘bum check’ and wanted us to pick him up, so we went down and brought him up on suspicion. Mr. Holbrook said .he was the man, when we went down to his home, and so we picked him up and brought him up to the city jail and booked him at 4:30 in the afternoon. I will grant the motion, Mr. French: If the motion is granted on the ground that the sufficiency of