16 P.2d 1007 | Cal. Ct. App. | 1932
Petitioner was tried upon a charge of the commission of crime under an information in two counts. The nature of the first count need not be stated, as nothing connected with it is material to the present controversy. The second count charged murder. Under this count petitioner could have been convicted, upon evidence satisfactory to the jury and under the theory of the prosecution, either of murder in the second degree or of manslaughter, or upon a failure of evidence satisfying the jury of his guilt of either crime he could have been acquitted. The jury was so instructed by respondent court and three forms of verdict, drawn in accordance with the instruction, were handed to the trial body upon its retirement for a consideration of the cause. Despite the very plain course thus outlined to its members, the jury used neither of the forms submitted to it but prepared a verdict of its own. This verdict read: "We, the jury in the above-entitled action, find the defendant not guilty of murder, a felony, as charged in count two of the information." The jury brought this verdict into open court and the foreman was asked by the trial judge whether the jury had agreed upon a verdict as to the second count. The foreman answered, "That is what we are uncertain about." This reply precipitated a lengthy colloquy, in which the judge, counsel on both sides, the foreman and one other juror participated. From the colloquy it developed that the jury had agreed, as stated in the verdict, that petitioner was not guilty of murder. Its members then proceeded to discuss and vote upon the question whether he was guilty or innocent of the crime of manslaughter, with the result that upon returning to the courtroom they stood on that question eight for acquittal and four for conviction. Upon statement that an agreement upon the mooted question was not likely, the trial judge set the cause for trial upon a particular date, the sole issue to be tried being *119 whether petitioner is guilty of manslaughter. The verdict finding him not guilty of murder was filed by the clerk but was not recorded, and the jury was discharged.
This proceeding was instituted for the purpose of procuring an order commanding respondent clerk to record the verdict and requiring respondent court to order the discharge of petitioner.
We are thus confronted with a question as to which counsel agree there exists no exact precedent, and we shall be compelled to unravel the tangled skein mainly by an inspection of the statutes, together with a consideration of such decided cases as may cast any ray of light upon the subject.
It is provided by section
[1] Returning to section
[2] This disposition having been made of the clause in section
The following statement of the rule that one charged with crime may not twice be put in jeopardy is to be found in an *121
early case: "We are . . . of opinion that under our Constitution, which protects a party from a second jeopardy of life, limb, liberty or property for the same public offense, whatever its grade, a person once placed upon his trial before a competent court and jury, charged with his case upon a valid indictment, is in jeopardy, in the sense of the Constitution, unless such jury be discharged without rendering a verdict, from a legal necessity, or for cause beyond the control of the court, such as death, sickness or insanity of some one of the jury, the prisoner of the court, or by consent of the prisoner; and if such jury render a verdict or be discharged before a verdict, without such legal necessity, controlling cause or consent, the prisoner is forever protected from a retrial upon the same or any other indictment for the same offense, unless, at his instance, the verdict be set aside or judgment be reversed . . ." (People v.Webb,
Leaving this general statement of the law concerning second jeopardy, let us now come nearer to the specific question under the glass, that is, does respondent court's improper reception of the verdict deprive petitioner of the claim that he has been once in jeopardy of the charge of manslaughter? In a concurring opinion in People v. Webb, supra, Justice Sawyer quoted the following from Bishop: `If, through misdirection of the judge in matter of law, or mistake of the jury or their refusal to obey the instruction of the court, or any other like cause, a verdict of acquittal is improperly rendered, it can never afterward, on application of the prosecutor in any form of proceeding, be set aside and a new trial granted." This paragraph, which contains a proper summary of a portion of the opinion in Ex parte Hartman,
[3] Respondent makes the point that petitioner has an adequate remedy in respondent court by way of motion to require the clerk to record the verdict and cannot therefore have the writ of mandate. There are several allegations in the petition for the writ which, taken together, show a threat upon the part of respondent court to try petitioner upon a charge of manslaughter and thus to exercise a jurisdiction which it does not possess. The point is not well taken.
A peremptory writ of mandate will issue as prayed.
Craig, J., and Thompson (Ira F.), J., concurred.