Appellant and one Bernard Schwarz were, on April 7, 1925, jointly indicted under the provisions of section 95 of the Penal Code, the indictment alleging that they did “ . . . wilfully, unlawfully, feloniously and corruptly attempt to influence the said juror (naming him), in respect to his verdict, opinion and decision as such juror therein, by an oral communication then and there made to him ...”

On June 22, 1925, the defendant Schwarz pleaded guilty to count one of said indictment and received in punishment a fine to the extent of $250, the second count being accordingly dismissed. Appellant was arrested on December 7, 1925. On December 10, 1925, she regularly entered her plea of not guilty to the indictment. On February 3, 1926, she changed her plea from not guilty to guilty, and applied for probation, which application was denied on March 25, 1926, and judgment of conviction was entered against her on said date. On March 29, 1926, four days afterward, she gave notice of appeal from said judgment. On April 1, 1926, she presented a motion to the superior court to set aside the judgment and sentence on the ground that the court was without jurisdiction to impose the judgment, asserting that the indictment did not state a public offense. This motion the court denied on April 5, 1926. Thereupon, in open court on said day, appellant gave notice of appeal from said order denying said motion. On April 9, 1926, appellant made application to the court, based upon a proper affidavit, for an order setting aside the judgment and granting her permission to withdraw her plea of guilty and to plead not guilty to the indictment upon the ground that she had been induced to change her plea from not guilty to guilty under duress and fraud.

The court denied this motion out of hand and, evidently thinking it was a repetition of the proceeding which ended in the order of April 5, 1926, ruled as follows: “This application was heretofore made to Dept. 21 and after argument denied on April 5, 1926. Its attempted presentment to the presiding judge is a violation of Rule 35 and contemptuous. It is refused. Burnell, Judge.”

The appeal from the judgment not having been taken orally at the time of the entry thereof, or within two days thereafter, was abortive and must be disregarded. (Pen. Code, sec. 1239.)

The appeal from the order refusing to vacate and set aside the judgment upon the ground that the indictment failed to state a public offense was taken in time, but, under the state of the record, this contention will not avail the appellant, as she failed to test the sufficiency of the indictment by demurrer or by motion in arrest of judgment (People v. Welton, 190 Cal. 236 -238 [ 211 Pac. 802 ]). “The case is one of an imperfect allegation of a material fact rather than of a total failure to set forth a material element.” (People v. Fuski, 49 Cal. App. 7 [ 192 Pac. 552 ]; People v. Griesheimer, 176 Cal. 44 [ 167 Pac. 521 ]; People v. Votaw, 38 Cal. App. 714, 718 [ 177 Pac. 485 ] ; People v. Hinshaw, 194 Cal. 1, 23 [ 227 Pac. 156 ].)

The appeal, however, from the order refusing to vacate the judgment and refusing to defendant the right to withdraw her plea of guilty and re-enter her plea of not guilty was taken in time and said order was appealable (8 Cal. Jur. 494, sec. 509; People v. Perez, 9 Cal. App. 265 [ 98 Pac. 870 ]). The record shows the grounds upon which said motion was based to be substantially as follows:

The question here presented is, May we interfere to reverse an order made after judgment, which denied a motion to vacate the judgment and to grant permission to defendant to withdraw her plea of guilty, with the right to take such action as she might be advised without hindrance by said former plea? The facts as alleged fully warrant the conclusion that substantial rights of the defendant have been taken away from her without an opportunity for a hearing on the merits, and this by those persons charged with the enforcement of the law. While no personal blame may attach to anyone connected with the matter, yet, if said allegations be true, the failure of the court to adopt the covenants made by the district attorney and grand jury with defendant amounted in legal effect to the absorption of her legal rights by at least legal fraud. Certainly in such ease it can be truthfully said that on account of the conduct of those in charge of her prosecution she surrendered valuable legal rights under a misapprehension of the situation.

Too much may not be done to purify and keep pure the administration of justice. If a defendant could not rely upon a covenant made with her by the head of the committee of the grand jury and the office of the district attorney, then indeed would our whole system of legal procedure be brought under the cloud of suspicion. It is far better that one woman go unpunished than that it be said that the officers of the law in charge of the prosecution of crimes may play fast and loose with their promises to defendants under indictment. Precedent for procedure for relief under these circumstances, where the facts warrant it, is found in the following cases: People v. Perez, 9 Cal. App. 265 [ 98 Pac. 870 ]; People v. Mooney, 178 Cal. 525, 529 [ 174 Pac. 325 ]; People v. Reid, 195 Cal. 249 [36 A. L. R. 1435, 232 Pac. 457 ].

It may be stated from the above authorities that it is now well settled in this state that where on account of duress, fraud, or other fact overreaching the free will and judgment of a defendant he is deprived of the right of a trial on the merits, the court in which he was sentenced may after judgment and after the time for appeal has passed, if a properly supported motion is seasonably made, grant him the privilege of withdrawing his plea of guilty and of reassuming the situation occupied by him before a plea of any kind was entered. It should be noted, however, that where statutory remedies are provided this method of relief may not be resorted to, and that this exceptional remedy applies only where no trial has been had on the merits and only upon a strong and convincing showing of the deprivation of legal rights by extrinsic causes.

The case of People v. Miller, 114 Cal. 10, 16 [ 45 Pac. 986 ], it is said, supports the action of the trial court, but it is not in the same category with the case before us as to the facts thereof. There the defendant was led by the advice of his counsel- to believe that he would get less punishment if he changed his plea to guilty than he would receive if he stood trial and was convicted. In this hope, however, he was disappointed. The court rightly held that with full knowledge of the consequences which might follow he should not be permitted to speculate upon the action of the court. But even in that ease the court said: “The law seeks no unfair advantage over a defendant, but is watchful to see that the proceedings under which his life or liberty is at stake shall be fairly and impartially conducted. It holds in contemplation his natural distress, and is considerate in viewing the motives which may influence him to take one or another course. Therefore, it will permit a plea of guilty to be withdrawn if it fairly appears that defendant was in ignorance of his rights and of the consequences of his act, or was unduly and improperly influenced either by hope or fear in the malting of it.”

Neither is People v. Lennox, 67 Cal. 113 [ 7 Pac. 260 ], a parallel case, for there the defendant relied upon the mere expressed opinion of the deputy sheriff and his attorney-as to the prospects for leniency. But neither of these persons was identified in any way with the policy that obtains in the prosecution of criminal eases.

Had the district attorney in either of the above cited cases, in consideration of the promise of immunity, received a full statement or confession from the defendant, and the defendant, relying upon such promise, entered a plea of guilty, which the court refused to permit him to change, this court doubtless would have given defendant speedy relief in both cases.

The purported appeal from the judgment is dismissed. The order of April 5th is affirmed. The order of April 9, 1926, denying the motion to vacate the judgment and grant permission to withdraw plea is reversed and the cause is remanded to the court below with directions to entertain said motion, and if the material allegations made in sup port thereof are sustained, to accord to said defendant the right to withdraw said plea of guilty, and for such further proceedings not inconsistent with this opinion as may seem meet and proper.

Waste, C. J., Langdon, J., Curtis, J., Bichards, J., Sea-well, J., and Shenk, J., concurred.