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The defendant was indicted by the grand jury of Tehama County for the crime of felony embezzlement. The defendant demurred to the indictment on the ground, among others, that the facts therein stated do not show the crime of embezzlement or the commission of any offense, and the court sustained the demurrer.

The district attorney appeals from the order sustaining the demurrer.

The defendant has moved to dismiss the appeal on the ground that the same was not taken within the time prescribed by law.

Section 1240 of the Penal Code provides: “An appeal may be taken by the people by announcing in open court at the time the order is made that the people appeal from the same.”

The record discloses that the order sustaining the demurrer was made and entered in the minutes of the court on the twenty-ninth day of November, 1921, and that the district attorney, on the fifth day of December, 1921, appeared in court and thus attempted to take an appeal from the order sustaining the demurrer, as follows: “District Attorney, M. J. Cheatham, now announces that this being the first Law Day and the first time when he was present in court since the making of the order sustaining the Demurrer to…