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 P. 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.