Perry

The People appeal from an order setting aside an information which charged the defendants with violation of Penal Code section 243, battery against a police officer, and violation of Penal Code section 148, resisting arrest.

The case came before the superior court, just as it is before us, on the reporter’s transcript of the preliminary examination held in the Dos Palos Judicial District Court of the County of Merced, State of California. The events upon which the information is based occurred at the Wheel Inn Café, Route 1, Box 114A, Dos Palos T. Defendants were quarreling in front of the café at 1 o’clock in the morning. The proprietor went outside and asked them to quiet down, warning that if they didn’t do so, he would call a police officer. Defendants continued their raucous quarreling, which originated over the attention defendant Delmar Lee Perry was paying to a woman other than defendant Norma J. Perry, his wife. The Constable of Dos Palos Township was in the café, and the proprietor asked him to quiet the three defendants.

The constable walked outside the building, observed the defendants, and asked them to stop cursing and to go home. Up to that point it isn’t clear…