THE PEOPLE, APPELLANT, v. A. P. MORE, RE

SPONDENT.

CRIMINAL LAW - DISMISSAL OF ACTION BY COURT-PEOPLE CANNOT APPEAL FROM ORDER. No appeal lies on behalf of the people from an order made by the Superior Court, of its own motion, dismissing a criminal action.

APPEAL from an order of the Superior Court of Santa Barbara County dismissing a criminal action.

The facts are stated in the opinion of the court.

Attorney-General Johnson, J. J. Boyce, and W. T. Williams, for Appellant.

McNulta & Oglesby, R. B. Canfield, and George Flournoy, for Respondent.

MCFARLAND, J.

This is an appeal taken in the name of the people from an order made by the Superior Court of the county of Santa Barbara, of its own motion, dismissing a criminal action in which respondent herein was defendant. The order was made under the power granted in section 1385 of the Penal Code, which is as follows:

"Sec. 1385. The court may, either of its own motion or upon the application of the district attorney, and in furtherance of justice, order an action or indictment to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes.

The respondent moves to dismiss the appeal, upon the ground that the order is one from which no statutory right of appeal is given to the people. It is certainly not one of the enumerated cases in which a right of appeal is given by section 1238 of the code, and there is no other statutory provision giving such right.

It is contended, however, by appellant, that as the

constitution gives this court appellate jurisdiction of questions of law arising "in all criminal cases prosecuted, by indictment or information, in a court of record," therefore there is jurisdiction here, although no statutory machinery for the appeal has been provided, as held in People v. Jordan, 65 Cal. 644. But the order in question is, in its nature and character, one from which the people cannot appeal. The power under which the order was made is substantially the same as that held by the attorney-general in England, and by the prosecuting officer in many of the American states, to enter a nolle prosequi. The court, for the purposes of the order of dismissal, takes charge of the prosecution, and acts for the people. It holds the power to dismiss, as the attorney-general in England holds the power to enter a nolle prosequi, by virtue of the office and the law; and it is exercised upon official responsibility. The court having acted for the people, and under express power granted by them to so act in their criminal prosecutions, there is no appeal on their part for such action. Of course, if a defendant should appeal from such an order, as he well might if it were made after the impaneling of a jury, a different case would be presented. monwealth v. Tuck, 20 Pick. 365.)

Appeal dismissed.

(Com

THORNTON, J., TEMPLE, J., SHARPSTEIN, J., Paterson, J., and MCKINSTRY, J., concurred.

Rehearing denied.

[No. 20229. In Bank. - January 17, 1887.]

THE PEOPLE, RESPONDENT, V. THEODORE H. COPSEY, APPELLANT.

CRIMINAL LAW

EXAMINATION OF JUROR HYPOTHETICAL QUESTION- - BIAS. - In a criminal prosecution, where the attorney for the defendant on the voir dire examination of a juror asks him hypothetical questions based upon his theory of the case, the district attorney on cross-examination may ask the juror whether he would regard the defendant as innocent if certain hypothetical facts related to him were true; and the answer of the juror in the negative does not show any bias against the defendant.

EVIDENCE

IMPEACHMENT OF WITNESS WANT OF RELIGIOUS BEA witness cannot be impeached by evidence showing him to be a person without religious belief.

LIEF.

APPEAL from a judgment of the Superior Court of Lake County, and from an order refusing a new trial.

The defendant was convicted of an assault with the intent to commit murder upon the person of one Frederick Sonsberry. On the trial, the district attorney, against the objections of the defendant, was permitted to ask each juror during his examination on voir dire the following question, which he stated was his theory of the facts that he expected to prove, viz.: "Do you believe that if you saw your brother struggling with a stranger, and your brother was sitting on the ground, and the stranger was face down in his lap; and your brother had his arm across the neck of the stranger, holding him down so that he could not move, and your brother had a pistol in his right hand, and the stranger had no weapon, and an officer of the law was standing over both in such a position that neither could do the other harm, that you would have the right to go up and shoot him?" To this question each of the jurors answered that he did not think he had a right to shoot under such circumstances. The defendant thereupon challenged the entire panel, on the ground that they were biased against

him. The court denied the challenge. The further facts are stated in the opinion.

R. W. Crump, for Appellant.

Attorney-General Marshall, for Respondent.

FOOTE, C. The defendant was found guilty, by the verdict of a jury, of an assault with intent to commit murder. From the judgment of conviction, and an order refusing him a new trial, he has appealed.

The first error assigned by the defendant is, that the court did not sustain his challenge to each and all of the entire panel of trial jurors, on the ground that they were biased against the defendant. The existence of this bias was alleged to have been shown from the fact that the jurors had each stated, on their voir dire, that if certain hypothetical facts related to them by the district attorney, as his theory of the case, were true, they would not regard the defendant as innocent of the crime charged against him.

It appears that the jury had previously had put to them by the defendant's counsel hypothetical questions based upon his theory of the case, and had been permitted to answer them, over the objection of the district attorney, in a manner favorable to the defendant. The cross-examination, therefore, by the district attorney was, as it seems to us, strictly legitimate, and we perceive nothing in the record which warrants even a suspicion that the jury were in any way prejudiced or biased against the defendant. The different theories of the case hypothetically put to them by each side that on the part of the defendant first, and on the part of the people last left the jury perfectly free to determine the guilt or innocence of the prisoner on trial before them. under the fair and clear instructions of the court, from the facts and circumstances adduced in evidence before them.

.

As to the objection made that the evidence did not warrant the jury in convicting the defendant, because it showed an absence on his part of all intent to commit murder, we have simply to say that the jury, with the evidence before them, have determined the issue submitted to them against him, and upon reviewing that evidence, we are not disposed to question the justness of their verdict.

The defendant sought to impeach the witness Sonsberry, by showing him to be a person who entertained no religious belief. To a question put to the witness on the part of the defendant, with that purpose in view, the court sustained an objection, of which the former complains. But his contention is not based upon any meritorious ground, as we think a reference to the constitution of California, article 1, section 4, and section 1879, Code of Civil Procedure, abundantly demonstrates. The judgment and order should be affirmed.

BELCHER, C. C., and SEARLS, C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

[No. 11013. In Bank. January 18, 1887.]

D. T. HALL, PETITIONER, v. SUPERIOR COURT OF EL DORADO COUNTY, RESPONDENT.

JUSTICE'S COURT

ID.

APPEAL

SERVICE UNDERTAKING.

NOTICE OF ORDER OF FILING AND A notice of appeal from a Justice's Court is not required to be filed prior to the service of a copy thereof upon the adverse party, nor need the undertaking thereon be filed simultaneously with the notice.

DISMISSAL OF APPEAL - JURISDICTION OF SUPERIOR COURTCERTIORARI. Where a notice of appeal from a Justice's Court is served and filed and the undertaking thereon is also filed within the time limited by law, an arbitrary dismissal of the appeal by the Superior Court because the notice was not filed prior to the service of a copy thereof on the adverse party, and because the un