¶1I dissent from only the part of the majority opinion holding that the order setting aside the accusation is a final order, yet nonappealable. The mere fact that an accusation is mentioned in the second paragraph of Penal Code section 1238 and not in the first paragraph thereof, does not, in my opinion, demonstrate a legislative intent that these provisions are exclusive and that Code of Civil Procedure section 963 is not applicable to this final judgment. Section 963 provides, in pertinent part: “An appeal may be taken from a superior court in the following eases:
“1. From a final judgment entered in an action, or special proceeding, commenced in a superior court, or brought into a superior court from another court; ...”
¶2Lack of a clear-cut statutory classification of an accusation as either a criminal or a civil action gives rise to my differences with the majority view. Although the statutes governing an accusation were removed from the Penal Code in 1943 and placed in Government Code sections 3060-3073, as the *126majority opinion points out, the courts have held that for certain purposes an accusation is to be treated as a criminal proceeding. Yet, it has been held- also that: “The procedure under section 758 [Pen. Code, now Gov. Code, § 3060] does not require the strict application of the rules which govern civil or criminal actions. It is not required that the misconduct charged against an official should necessarily constitute a crime. It is exempt from technical rules of procedure.” (People v. Harby, 51 Cal.App.2d 759, 767 [125 P.2d 874].)
¶3Since proceedings under the accusation statutes are neither strictly criminal nor strictly civil, I see no reason in law or logic to hold that the right to appeal from a final judgment of the superior court under Code of Civil Procedure section 963 does not apply to an accusation. On the other hand, it seems unreasonable to impute to the Legislature an intent to invest a trial court with plenary power to dismiss an action upon the pleadings and enter a final judgment immune from review. This would be to invest a superior court judge with authority transcending the Supreme Court of California. To me, such a result seems at odds with our theory of judicial process which jealously protects the right to appeal from a final judgment in the trial court, except in cases wherein a reversal on appeal would subject the defendant to double jeopardy. The issue of double jeopardy is not involved here.
¶4Absent a clear mandate to the contrary, I would adhere to the fundamental judicial principle that recognizes the right to appeal from a final judgment.
¶5Appellant’s petition for a hearing by the Supreme Court was denied March 31, 1965. Most, J., did not participate therein. Traynor, C. J., and Tobriner, J., were of the opinion that the petition should be granted.