We are satisfied that the sheriff has a right of appeal from the order in question. It is admitted that he is not a party to the action in which the writ of execution was issued and that he is not interested in the subject matter of that writ; but he is interested in the order made against him, and in the protection of the rights which he claims to have under the provisions of section 689 of the Code of Civil Procedure. As to those claims the order in question has the effect of a judgment against him. By virtue of the order to show cause and the subsequent proceedings thereunder, the sheriff has been made a party to a collateral proceeding arising in the action, and he has a right to appeal from an order having the nature and effect of a judgment against him in such proceeding. The case is governed by the principles announced by the supreme court in Anglo-Californian Bank, Ltd., v. Superior Court, 153 Cal. 753, [96 Pac. 803]. In that case it appeared that in an action to which the Anglo-Californian Bank was not a party, the superior court made an order requiring that the bank pay over to the receiver in the action money which the bank had in its possession as agent of the California Safe Deposit & Trust Company, an insolvent corporation. The bank did not claim any interest in the funds, but refused to pay to the receiver because claims were made to the bank by third parties who asserted ownership in said funds. Claiming that the order was one made in excess of the jurisdiction of the superior court, the bank applied to the supreme court and obtained a writ of review. After full consideration of the matter, that court determined that the writ was improperly issued because the petitioner had a right of appeal from the order. For that reason the proceeding was dismissed. The court said: "That an order of the character of the one under consideration is generally appealable by one affected thereby who is a party to the record is practically conceded by learned counsel for plaintiff, and it must be under the decisions of this court. The theory upon which the decisions sustain such right of appeal by such a party from such an order is that the order is in effect a final judgment against him in a collateral proceeding growing out of the action-in so far independent of the suit itself as to be substantially a final decree for the purposes of an appeal. . . . (See Grant v. Superior Court, 106 Cal. 324, [39 Pac. 604]; Grant v. Los Angeles etc. Ry. Co., 116 Cal. 71, [47 Pac.

872]; Los Angeles v. Los Angeles etc. Co., 134 Cal. 121, [66 Pac. 198].) Plaintiff's position on the merits is that by reason of the claim made against it by the third parties as to this money, it cannot safely pay the same to the receiver except in pursuance of some judgment or order made in a proceeding to which such claimants are parties, and that it is entitled either to retain the money until such controversy is determined, or to pay the money into a court having jurisdiction thereof, to abide such determination. The order in question is a final adjudication against plaintiff upon these matters. Its effect, if valid, is to require plaintiff to forthwith pay such money to the receiver, and finally deprive it of possession thereof without securing it against the claims of such third parties. It is clearly within the class of orders referred to in the cases last cited. Plaintiff was, of course, a party to the record, so far as such collateral proceeding was concerned, having been brought in as such a party by the order to show cause, and is fully within the rule of Elliott v. Superior Court, 144 Cal. 506, [103 Am. St. Rep. 102, 77 Pac. 1109], in regard to parties entitled to appeal."

In the case at bar the sheriff has been made "a party to the record, so far as such collateral proceeding was concerned, having been brought in as such party by the order to show cause." Being thus before the court and having been subjected to an adverse judgment affecting his substantial rights, he has the right of appeal from that judgment. It follows that the writ of review in this proceeding was improperly issued.

The writ is discharged and the proceeding dismissed.

James, J., and Shaw, J., concurred.

[Crim. No. 391. Third Appellate District.-October 27, 1917.] THE PEOPLE, Appellant, v. JOHN CAVALA, Respondent. CRIMINAL LAW-WITNESSES-IMMUNITY.-Exemption from prosecution given by section 1324 of the Penal Code (prior to its repeal by Stats. 1917, p. 291) to a witness who has been required to testify against another offender does not extend to one whose testimony did not criminate or tend to criminate him, and who at the time he testified was neither formally charged nor suspected by the district attorney of complicity in the offense.

APPEAL from an order of the Superior Court of Merced County granting a new trial. George H. Cabaniss, Judge.

The facts are stated in the opinion of the court.

U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Appellant.

H. A. Gabriel, J. J. Griffin, and H. S. Shaffer, for Respondent.

HART, J.-Under an information filed in the superior court of Merced County, by the district attorney of said county, the defendant was convicted of the crime of grand larceny, in that he did, on the twenty-ninth day of April, 1915, feloniously steal, take, and drive away a certain cow, the personal property of J. B. Coito & Co., a firm engaged in the business of dairying in said county.

The court below, upon the application of the defendant, ordered a new trial, stating the ground therefor as follows: "The motion for a new trial made herein is granted on the ground that the court committed an error in refusing to grant defendant's motion that the action be dismissed, and that a verdict of 'not guilty' be pro forma rendered in the case, by reason of his immunity from prosecution for the offense charged in this information, because of testimony given by him as a witness upon the preliminary examination of that same matter or charge, wherein the people were prosecuting one George A. Avila."

The people appeal from said order.

Obviously, the only question presented here is whether the defendant was entitled to immunity from prosecution for the charge preferred against him by the information under the terms of section 1324 of the Penal Code.

One George M. Avila had previously been prosecuted in the superior court for the identical offense charged against the defendant here, and the latter testified in that case. In this case the defendant did not take the stand, but his testimony, given in the Avila case, was introduced by the district attorney in the present case. In the Avila case, the defendant practically admitted that he stole the cow referred to in the information.

It appears that Avila was engaged in the business of a butcher and that he did his own slaughtering. On his ranch, where he conducted his business, the defendant, at the time of the commission of the larceny here charged, had about thirty head of milch cows, which he had left there a day or two before the larceny. Avila was to take care of said cows for the defendant and sell the same whenever the opportunity to do so presented itself.

Avila maintained a slaughter-house for the purposes of his business, but occasionally slaughtered cattle in his barn on the ranch.

On the twenty-ninth day of April, 1915, at about half-past 8 in the evening, and a couple of hours after he had had supper at the Avila home with the family, the defendant, having previously left the Avila place in his automobile, returned to said place and brought with him the cow referred to in the information. According to his own testimony given in the Avila case, the defendant, as he was driving along the road on his return to the Avila ranch and when near the latter's house, observed a cow in the road and at the same time saw a man jump over the fence skirting the road and start to The defendant yelled at the man, but the latter made no response, and kept on running. He thereupon drove to Avila's house, there left his machine, and returned to get the cow, he then supposing, so he declared, that it was one of his COWS. He drove the cow to Avila's place and, on turning a light on her, discovered that the animal did not belong to him. He then blew the horn on his auto and Avila thereupon came out of his house and went to where the defendant was standing. The latter then requested Avila to kill the

run.

cow and ship the carcass to O'Connor Brothers, at San Jose. The defendant thereupon left the premises; and, in accordance with the instruction given him by the defendant, Avila that night slaughtered the cow and dressed the carcass in his barn, but in the place of shipping the beef as directed by the defendant, cut it into meat and sent it out the next morning in a wagon, used by him for that purpose, to be peddled or sold to the people living in the country thereabouts, explaining that he had forgotten the address to which the defendant directed him to ship the beef, and that he would himself pay the defendant for it. The defendant, in his testimony at the trial of Avila, explained that the reason that he instructed Avila to slaughter the cow after discovering that the animal was not his property was because he "figured that the other man was going to get away with her, and I said if the owner shows up, I am willing to pay for her-I am willing to pay for the cow."

The owners of the cow, having missed her from their ranch the next morning after the above-narrated incidents occurred, notified a constable of the fact, and that officer, with one of the owners of the cow, thereupon started to search for her. On the afternoon of that day they went to Avila's ranch and in his barn they found what they identified as the hide of the cow in a roll on the floor or ground.

Avila was questioned about the cow, gave equivocating and unsatisfactory answers, and was thereupon placed under arrest. Later he was formally charged before a magistrate with the larceny of the cow and thereafter given a preliminary hearing and held for trial in the superior court.

The defendant, as seen, was called by the district attorney to testify for the people at the preliminary examination of Avila.

At the trial of the defendant, after the people had presented and rested their original case, counsel for the defendant thereupon introduced in evidence the defendant's testimony given at the preliminary examination of the charge against Avila, and upon said testimony and the admission of the district attorney that section 1324 of the Penal Code was not at any time read to the defendant at said examination by the justice before whom the proceeding was held, presented a motion that the court instruct the jury to acquit Cavala on the ground that, under the showing thus made, the defend