People v. Giminiani

HOUSER, J.

This is an appeal by the People from an order made by the court setting aside an information.

As shown by the record herein, the facts of the case are that by a complaint filed in the justice court defendant was charged with a misdemeanor, to wit, contributing to the delinquency of a minor, and on which complaint, after proceedings had in the justice court, defendant was committed and held to answer to the superior court. In the orderly course of procedure, an information was then filed in the superior court charging defendant with the commission of the same offense for which theretofore he had been so held to answer. When the action came on for hearing, after a jury had been impaneled to try the case

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and a witness had been • sworn to testify therein and had given some testimony, on motion of plaintiff the action was dismissed, with leave to “commence anew proceeding against the defendant by filing a new complaint in the justice’s court.” Thereupon a new complaint was sworn to against defendant in the justice court, upon which, after a preliminary examination, he was again committed and held to answer to the superior court. A new information having been filed against defendant in the superior court pursuant to said second commitment, the case against him again was brought to trial; whereupon, on motion of defendant, the court made an order setting aside the second information. It is from such order by the court that this appeal is taken.

The statute under which the dismissal of the first action against defendant was had provides that: “An order for the dismissal of the action, as provided in this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor, unless such order is explicitly made for the purpose of amending the complaint in such action, in which instance such order for dismissal of the action shall not act as a bar to a prosecution upon such amended complaint; ...” (Pen. Code, sec. 1387.)

The offense with which defendant was charged was what is sometimes called a high-grade misdemeanor, provided for by the statute known as the Juvenile Court Act (Stats. 1909, p. 213, as variously amended), and by which, under the terms of the amendment of 1921 (Stats. 1921, p. 773), “the superior court, sitting as a juvenile court, shall have original jurisdiction over all such misdemeanors.” It is, however, held in the case of