Prudencio

This is an appeal by the People from an order granting defendant’s motion for a new trial. The grounds urged for reversal are that at the time the motion was granted the trial court was without jurisdiction to hear or determine the same, and that even though jurisdiction did exist to entertain the motion, the granting of the same constituted an abuse of discretion.

The facts are as follows: The defendant was charged with murder by an information alleging that he did “unlawfully, wilfully, feloniously, and of his malice aforethought kill and murder one Antonio Garcia.” He entered a plea of not guilty, and upon trial the cause was submitted to the jury by the court under customary instructions to the effect that if it found that the defendant was guilty it should declare the degree of murder, and that if it found that he was guilty of murder in the first degree it should also determine and indicate by its verdict whether he should suffer death as a penalty therefor or be imprisoned in the state prison for life. Several forms of verdict were prepared and given to the jury by the court, and on January 12, 1927, the jury rendered its verdict finding defendant guilty of murder in the…