Ex Parte Newell

SHAW, C. J.

The petitioner, Hugh H. Newell, was tried upon an information charging him with cashing a check drawn upon a bank in which he had no funds, and he was acquitted on the ground of variance. Thereupon the court directed the district attorney to file a new information so as to avoid the variance discovered upon the trial. In accordance with this order a new information was filed and the petitioner was detained in custody to await trial upon the new information. He applies for a writ of

habeas corpus

on the ground that his detention to answer the new information is illegal.

[1]

The principal point relied on is that because of the fact that the new information was filed more than thirty days after the defendant had been held to answer by the committing magistrate, the court has no power to do otherwise than dismiss the prosecution as provided in section 1382 of the Penal Code. That section does not apply to the case. It provides that unless good cause to the contrary is shown the court must dismiss a prosecution where the defendant has been held to answer and no information is filed within thirty days thereafter. It does not provide for a ease where an information has been filed within the thirty days and a trial has been had thereon, and a new information is directed by the court because of an acquittal upon the trial of the original information on the ground of variance. In such a case a new information is authorized by section 1165, and it is manifest that the provision of section 1382 applies

[510]

only to the information .first filed where the filing is delayed more than thirty days after the commitment to answer.

Section 1165 provides that where an acquittal occurs because of a variance between the pleading and proof, the court may order the defendant to be detained in custody “to the end that a new indictment or information may be preferred, in the same manner and with like effect as provided in section 1117.” Section 1117-provides that when the trial of a cause is discontinued and a jury discharged because the facts alleged did not constitute an offense, and the court, nevertheless, believes from the evidence adduced or for other good reasons that a new charge can be framed which will constitute an offense, the court “may direct the district attorney to file a new information . . . and the same proceedings must be had thereon as are prescribed in section 998; provided, that after such order or submission the defendant may be examined before a magistrate, and discharged or' committed by him as in other cases.” Section 998 provides that where a new information is ordered the defendant shall remain in custody, or on bail, to answer the same, but that if it is not filed before the next grand jury of the county is discharged, the defendant must be discharged from custody or his bail exonerated.