I concur in the views of Justice Lorigan, except that, in my opinion, this appeal cannot be disposed of either by affirmance or reversal of the order of the superior court without a determination of the question whether the verdict of acquittal rendered in obedience to that order constitutes a bar to any further prosecution of the defendant. For, if he is forever freed from further prosecution upon the charge contained in this information, I think we are scarcely justified in disregarding our own precedents in similar cases (People v. Horn, 70 Cal. 17;People v. Roberts, 114 Cal. 67; People v. Terrill, 132 Cal. 497), in each of which the order directing an acquittal, though conceded to be erroneous, was nevertheless affirmed solely because the acquittal was a bar to any further prosecution. The fact that there could be no further prosecution of the defendants in those cases would, I think, have better sustained orders dismissing appeals upon the ground that the proceeding was vain and nugatory than judgments of affirmance; but since the dismissal of an appeal operates as an affirmance, this criticism applies not to the substance but merely to the form of those judgments, which clearly commit this court to the doctrine that judgment or an order in a criminal case will not be reversed on appeal by the people when it appears from the record that the prosecution of the defendant is necessarily at an end.
The court having in its opinion expressly avoided a decision *Page 698 of the question whether the verdict and judgment herein are available in support of a plea of former jeopardy, I deem it improper to express an opinion upon the point thus reserved for further consideration, and content myself with the expression of my concurrence in the view that the order appealed from was unwarranted.