I dissent. While the cases hold that a defect in the information or the action of the court in overruling a demurrer can be reviewed only on an appeal from the judgment and not when, as here, the appeal is taken from the order denying a motion for a new trial, nevertheless, in the instant case the record shows that when the first witness was called at the trial and before such witness gave any testimony, defendant objected to the introduction of any evidence on the ground that he had been committed by the magistrate without reasonable or probable cause. Consequently, we are not here confronted with the review of any defect or other impairment appearing upon the face of the information, but with a review of a motion which amounted to a challenge to the jurisdiction of the court. In my opinion, the correctness of the ruling denying such motion is reviewable on appeal from an order denying a motion for a new trial, presenting, as such an appeal does, a question of law involved in a ruling made by the court at and during the trial. (Pen. Code, sec. 1259.) Prior to making the objection just mentioned to the introduction of any evidence, defendant had made his motion under section 995 of the Penal Code to set aside the information, and in support thereof offered in evidence the transcript of the testimony taken at the preliminary examination, and which transcript is now before us, as it was before the trial court at the time objection was made to the introduction of any evidence.
The case of Greenberg v. Superior Court, 19 Cal. (2d) 319 [121 Pac. (2d) 713], recently decided by our Supreme Court, is authority for the statement that when a grand jury indicts a person without the presentation of evidence to connect him with the commission of the crime charged, it exceeds its authority, and the indictment returned is void and ineffectual to confer jurisdiction upon a court to try a person for the offense charged. By the same token, may it not be said that where a committing magistrate holds a person to answer without reasonable or proper cause therefor, an *189information predicated upon such a commitment is void and equally ineffectual to confer jurisdiction upon the superior court to try such person for the offense charged in the information ?
From a review of the evidence adduced at the preliminary examination, it is at once apparent that no attempt was made to prove the falsity of the representations allegedly made by the defendant, nor to establish that the property admittedly received by the complaining witness was not in fact worth the money she paid therefor. It seems to me these are essential and material elements of the charge made against appellant and form its gravamen or core. I am strongly of the opinion that the evidence presented at the preliminary examination falls far short of establishing that reasonable or probable cause required for commitment of the defendant for trial by the magistrate. Such being the case, the superior court was without jurisdiction to try the defendant (Greenberg v. Superior Court, supra), and the ruling of the court on the motion appropriately made at the trial challenging the court’s jurisdiction is in my opinion reviewable on appeal from the order denying the motion for a new trial. Therefore, such order should be reversed.
Appellant’s petition for a hearing by the Supreme Court was denied March 27, 1942. Carter, J., voted for a hearing.