In the Matter of Burleigh

McFARLAND, J.

A written accusation under section 758 et seq. of the Penal Code was made by a grand jury, charging the respondent, Burleigh, with misconduct -in his office of supervisor. "He filed what we suppose may be called a demurrer,—that is, a written document containing objections “to the legal sufficiency of the accusation” as provided in sections 762-763. The demurrer was based on several grounds, and, among others, that the accusation did not substantially conform to the provisions of the Penal Code, or sections 950, 951, or 952 thereof, and that more than one offense was charged. The court below sustained the demurrer, stating in its order that it was sustained for the reason that more than one offense was charged therein. The people appeal from the judgment.

The appellants concede that if the accusation is to be treated as an indictment, then the demurrer was properly sustained. They contend, however, that an accusation under section 758 is not an indictment. They also concede that if that be so, then the people have no appeal, and this appeal would have to be dismissed.

Notwithstanding this peculiar position occupied by appellants, still in order to reach the proper judgment to be rendered on this appeal—that is, whether we should consider the judgment of the court below and either affirm or reverse it, or whether we should dismiss the appeal—it seems necessary to determine whether or not the accusation under section 758 is in law an indictment, and the trial under it subject to the rules which apply to the trial of an indictment; and, in our opinion, such accusation is not an indictment, and is not to be treated as such.

The main argument of respondent is, that an accusation comes strictly within the definition of an indictment, which is "defined in section 917 as follows: “An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense.” But an accusation under section 758 is not an accusation “presented by a grand jury to a competent court”; it “must be delivered

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by the foreman of the grand jury to the district attorney.” ¡When an indictment is found by a grand jury it “must be presented by their foreman in their presence to the court” (sec. 944), and must have certain indorsements; and the defendant may, on motion, have the indictment set aside “where it is not found, indorsed, and