Ex parte Williams

order in full as made by the court below, omitting the part sustaining the demurrer, was this: “And it appearing to the court that the objection raised by the demurrer to the information may be avoided, leave is granted to the district attorney to file a new information.” This order very clearly shows that the intention of the court was to direct that a new information, curing the suggested defects, should be filed, and I think the language used by the court equivalent to the direction provided by the statute. I am unable to coincide with the view expressed in the main opinion, that the language was *515 merely a permissive direction to be acted upon at the discretion of the district attorney. I think the petitioner should be remanded.

The petitioner seeks his discharge upon habeas corpus, and shows the following facts: To the indictment charging him with forgery he interposed a demurrer, which demurrer was by the court sustained, “ with leave to the district attorney to file a new information.”

Section 1008 of the Penal Code provides that the allowance of a demurrer to an information or indictment is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is allowed may be avoided by a new indictment or information, directs the case to be submitted to another grand jury, or directs a new information to be Med. This section plainly contemplates that the filing of a new indictment or information after demurrer sustained shall rest in the discretion of the court, and not in the discretion of the district attorney, and that it shall be filed upon the court’s direction or command to the district attorney so to do.

We have frequently been compelled to comment upon the apparent unwillingness of trial judges to obey the plain mandate of the statute, and upon their carelessness in conforming to the clear requirements of the law. It would have been…