People v. Lee

Appeal by the people from the order sustaining a demurrer to the indictment, and directing the submission of the cause to another grand jury.

A motion to dismiss the appeal is made by the respondent, and this motion first invites consideration.

Respondent contends that, the court having directed the submission of the matter to another grand jury, in the belief that the defect found in the indictment was curable (Pen. Code, sec. 1008), the right of the people to appeal is thereby cut off. The authority relied upon is the case of People v. Wooster, 16 Cal. 435 . But the case of the People v. Wooster, supra, is radically dissimilar from the case at bar, as will become patent when it is noted that in the former case the district attorney took no exception to the ruling of the court sustaining the demurrer, while in the case at bar he did. (Pen. Code, sec. 1172.) In the Wooster case the district attorney moved for and obtained an order submitting the cause to another grand jury; in the present case he asked for no such order, and excepted to the one made by the court of its own motion. In People v. Wooster, supra, the court said: “The failure to except and the taking of the order…