The appeal from the order denying the new trial having been taken more than sixty days after the order was made, must be dismissed. (Penal Code, sec. 1239.)

The defendant, in addition to the plea of not guilty, pleaded a former acquittal. On the trial he introduced in evidence an indictment found against him for the same offense, and an order made by the District Court setting aside the indictment and sub*631mitting the case to another grand jury. The prosecution introduced in evidence a notice and motion to set aside the indictment, on the ground that the grand jury had not been legally constituted, and it was admitted that the defendant was in custody when the first indictment was found. This evidence was insufficient to maintain the plea of former acquittal, and the Court did not err in instructing the jury to that effect.

The instructions which the Court refused to give, at the request of the defendant, were fully covered by the charge of the Court, so far as they correctly stated the law applicable to the case.

Judgment affirmed.