People v. Hunckeler
48 Cal. 331
Cal.
1874
Check Treatment
By the Court, McKinstry, J.:

“No person shall be subject to be twice put in jeopardy for the same offense.” (Const. Art. I, Sec. 8.)

This language is more than the equivalent of “no person shall be twice tried for the same offense.” (1 Bishop, Cr. L. 1018, 5th ed.) A defendant is placed in apparent jeopardy when he is placed on trial before a competent Court and a jury empaneled and sworn. His jeopardy is real, unless it shall subsequently appear that a verdict could never have been rendered by reason of the death or illness of the Judge or a juryman, or that after due deliberation the jury could not agree, or by reason of some other like overruling necessity which compels their discharge without the consent of the defendant. (People v. Webb, 38 Cal. 467, and cases there cited.) And when a person has been placed in actual jeopardy, the jeopardy cannot be repeated without his consent, whatever statute may exist on the subject. (1 Bishop Cr. L. 1,206, 5th ed.) Once in actual jeopardy, a defendant becomes entitled to a verdict which may constitute a bar to a new prosecution; and he cannot-be deprived of his right to a verdict by nolle prosequi entered by the prosecuting officer, or by a discharge of the jury, and continuance of the cause. (Cooley Const. Lim. 327.)

A person cannot be twice placed in jeopardy for the same offense; but, in the cases to which we have referred, the happening of the subsequent event which renders the discharge of the jury necessary, shows that the defendant has never been in actual jeopardy.

In the case before us, however, it is not pretended that a verdict could not have been rendered at the first trial. The mere opinion of the District Judge that the evidence showed the defendant to be guilty of a higher degree of crime, was not such a necessity as required the discharge of the jury, or authorized a re-trial of the defendant for the same offense.

Judgment reversed and cause remanded, with direction to discharge the defendant.

Mr. Justice Rhodes did not express an opinion.