People v. Superior Court

PRESTON, J.

The object of this proceeding is to accomplish by wit of mandate the following result: To require the Superior Court to reinstate a criminal cause that it has heretofore dismissed upon the ground that the indictment therein did not charge a public offense and to that end to cause the defendant therein to be re-apprehended, the jury to be resummoned and reassembled and to thereafter require the cause proceeded with to verdict and judgment. It must be seen at once that these requests are unusual and test severely the strength of the writ of mandate.

The facts out of which this controversy arose are: The indictment was returned on September 30, 1930, purporting to charge one Johnson with the crime of perjury. His demurrer thereto upon the ground that the same did not state a public offense and other grounds was overruled and thereafter he entered his plea of not guilty and the cause

[515]

went to trial. After the examination of some twelve witnesses and after the prosecution had rested its case, defendant filed a written motion for a directed verdict and dismissal of the action, specifying among other things the particular ground that the indictment did not charge facts sufficient to constitute the crime of perjury. The court sustained this contention and thereupon entered its order dismissing the indictment, releasing the defendant, exonerating his bail and discharging the jury.

In making this order the court did not, as it might have done under section 1117 of the Penal Code, direct the case to be resubmitted to the same or some other grand jury nor did it require the proceedings set forth in section 998 of said code respecting the custody of the defendant. Neither did the prosecuting attorney apply for any such relief at the time the indictment was dismissed. But later the petitioner filed this petition for writ of mandate in the District Court of Appeal, Second District, Division One, alleging the above facts and praying that the writ issue to accomplish the said purpose. Said court denied the petition and a transfer of the cause was had to this court, largely to give further consideration to the contention that there was a conflict between the holding of the District Court of Appeal in this case and its holding in the ease of

People