Ballard

This is an appeal from a judgment against defendant, and the order denying defendant’s motion for a new trial.

Defendant upon a previous trial was convicted, and upon appeal from the judgment and order denying his motion for a new trial this court reversed the judgment, but failed to expressly or in terms dispose of the appeal from the order denying the motion for a new trial. Neither did this court upon the former appeal expressly order a new trial nor direct the discharge from custody of the defendant. (Pen. Code, sec. 1262; People v. Ballard, 1 Cal. App. 222 , [ 81 Pac. 1040 ].)

Upon the calling of the case for trial after the going down of the remittitur, defendant objected to the trial proceeding, upon the ground that the court had no jurisdiction to proceed, no new trial having been ordered by the appellate court. This objection was overruled and the trial proceeded.

Defendant now contends that because this court failed to order a new trial upon reversing the former judgment, the trial court should have dismissed the action.

We think the point has been disposed of adversely to defendant’s contention by the decision of the supreme court, to which he applied for a…