Dye

Upon conviction of murder in the first degree the defendant was sentenced to imprisonment for the term of his natural life. He appeals from the judgment and from the order denying his motion for a new trial.

As a result of a former trial this defendant was convicted of murder in the second degree. On appeal to this court from the judgment and from an order denying motion for a new trial the judgment and order were reversed. (People v. Dye, 119 Cal. App. 262 [ 6 Pac. (2d) 313 ].)

At the opening of the second trial defendant moved to dismiss the action, and that he be discharged from custody, on the ground that the District Court of Appeal had reversed the judgment without ordering a new trial. Appellant now contends that the court erred in denying the motion, and relies upon In re Hampton, 98 Cal. App. 480 [ 277 Pac. 170 ], and the provisions of the Penal Code mentioned in that decision. The point is without merit. The decision in the Hampton case merely declared that where the appeal is from the judgment alone, and where the court reverses the judgment without making any order concerning the subject of new trial, such reversal operates as a final determination of the action. The…