
    [Crim. No. 799.
    First Appellate District, Division One.
    December 31, 1918.]
    THE PEOPLE, Appellant, v. JULIAN DEPAVO, Respondent.
    Criminal Law—Appeal—Discharge of Jury Before Verdict—Nonappealable Order.—An order discharging a jury in a criminal prosecution before verdict and while the ease was yet on trial, and the people were attempting to introduce their evidence, is not appealable under section 1238 of the Penal Gode.
    APPEAL from an order of the Superior Court of Fresno County, discharging a jury during trial. George E, Church, Judge. Appeal dismissed.
    The facts are stated in the opinion of the court.
    U. S. Webb, Attorney-General, and John H. Riordan, Deputy Attorney-General, for Appellant.
    Henry Brickley and J. O. Traber for Respondent.
   THE COURT.

This is an appeal by the people of the state of California from an order of the trial court discharging a jury before it had brought in a verdict and while the case was as yet on trial and the people were attempting to introduce their evidence. The facts are more fully set forth in People v. Superior Court, ante, p. 324, [178 Pac. 730], The plaintiff: and appellant have brought up the record in a bill of exceptions, and the defendant has appeared and moved to dismiss the appeal. One of the grounds of the motion to dismiss is that the order of a trial court dismissing a jury when refusing to proceed further is not an appealable order under the provisions of section 1238 of the Penal Code of the state of California. We think that the motion is well founded. The appeal is, therefore, dismissed.  