Ryland G. Taylor, for Petitioner.
H. H. Atkinson, for Respondent.
By the Court, Coleman, C. J.:
Petitioner was informed against for embezzlement. To the information a demurrer was filed which, after argument, was sustained by the court. The district attorney, anticipating the result, had prepared a new information, and at the time the demurrer was sustained asked leave of court to file a new information, which was granted. Thereafter counsel for defendant made a motion to dismiss the information upon the ground that it had been filed without due authority of law. After argument and due consideration, the motion was denied.
Thereupon the defendant filed his original petition for a writ of habeas corpus, upon the ground that he is illegally restrained of his liberty, for the reason that the court at the time of sustaining the demurrer to the original information did not direct that a new information be filed; and to sustain his contention reliance is had upon section 7101 of the Revised Laws of 1912. The section reads:
If the demurrer is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the case to be submitted to the same or another grand jury; provided, that after such order of resubmission, the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases.
It is contended that, while the court might direct the filing of a new information, it had no jurisdiction to grant leave to the district attorney to file it. In support of the contention our attention is directed to the cases of In Re Williams, 116 Cal. 512, 48 Pac. 499, People v. Jordon, 63 Cal. 219, and People v. O'Leary, 77 Cal. 30 18 Pac. 856.
It will be seen that the section quoted makes no allusion to situations arising because of the sustaining of a demurrer to an information, but our information act (Stats. 1913, p. 293) provides that all provisions of law applying to prosecutions upon indictments shall apply to informations, as near as may be.
The Jordon case is not in point, for the reason that the second information was filed without any order whatever having been made by the court permitting or directing the filing of the same. Nor is the O'Leary case in point, because an entirely different question was involved there than that here presented. Furthermore, it appears from the opinion in that case that the court directed the district attorney to file a new information. * * * From a reading of Ex Parte Williams, we are of the
opinion that it cannot be said that it is directly in point in fact as well as in law, as stated in one of the briefs. There is this difference: In the case at bar the district attorney, anticipating that the demurrer would be sustained to the first information, prepared a new information which he had in court when the order sustaining the demurrer was entered by the court, and immediately asked leave to file the same, which was granted, and the information was instantly presented and examined by the court, while in the California case in question the demurrer was sustained with leave to the district attorney to file a new one. So far as appears from the opinion in the Williams case, the district attorney did not signify any desire at that time to so proceed. The reasoning of the court in that case does not apply to the situation presented in the instant case. There it was said that the order made was an attempt to transfer the duty of deciding, that if the district attorney failed to act, had he been directed to file a new information, he would have been guilty of misfeasance or nonfeasance, but that if he had refused to act under a permissive order, there would have been no liabilityall of which is no doubt true.
But in Ex Parte Hughes, 160 Cal. 388, 117 Pac. 437, in an opinion by Henshaw, J., who wrote the opinion in the Williams case, it was practically held that it was not a jurisdictional requirement that the court direct that a new information be filed; for it was held in that case that it was sufficient where the court said that it was of the opinion that a new information should be filed, which would do away with the objection and be sufficient in all respects. In the Hughes case the court neither granted leave to file a new information nor directed the filing of one, but merely expressed its opinion as to what should be done.
It will be noted that two of the judges expressed an opinion that the rule declared in the Williams case should have been expressly overruled. As we construe the opinion ...