Crim. No. 711. | Cal. | Apr 29, 1901
This is an appeal by the people from an order of the court directing the jury to find a verdict for defendant.
The indictment charged the defendant with the crime of forgery, in uttering and passing a certain false and fictitious note, dated April 28, 1897, purporting to have been made by one R.J. McIntyre to one Eddie Bunney for $260, gold coin, payable one year after date. In proof the prosecution offered in evidence a certain promissory note, of which the following is a copy, to wit: —
"$260.00. SAN JOSE, April 28th, 1897.
"One year after date, without grace, I promise to pay to the order of Eddie Bunney, at San Jose, Cal., two hundred and sixty dollars, in gold coin of the United States of America, with interest thereon, in like gold coin, at the rate of 9 per cent. per annum from date until paid, for value received; and in case suit or action is instituted to collect this note, or any portion thereof, I promise to pay such additional sum as this court may adjudge reasonable, as attorney's fees in said suit or action.
R.J. McINTYRE."
The defendant objected upon the ground of variance, and that the note offered in evidence was not the one described in the indictment. The objection was sustained, and the judge said: "The defendant's objection of a variance between the *499 note set forth in the indictment and the note offered, the court sustains, and refuses to allow it in evidence. Now, gentlemen, you will return a verdict as I have prepared it here, finding the defendant not guilty, upon the ground of a material variance between the note alleged in the indictment and the note offered in evidence."
The jury retired, and, after returning into court, found the following verdict: —
"We the jury, find the defendant not guilty, upon the ground of a material variance between the note set forth in the indictment and the note offered and read in the case, and the introduction of which in evidence was, under defendant's objection, refused.
GEO. W. HANSON, Foreman.
"Dated Aug. 16, 1900."
The court erred in directing the jury to bring in a verdict on the ground of variance between the note offered in evidence and the indictment. The indictment was sufficient without containing a copy of the note alleged to have been the subject of the forgery. (People v. O'Brien,
There was no material variance here between the promissory note offered in evidence and the note described in the indictment. The indictment correctly described the note as to its date, amount, time of maturity, maker, payee, and the kind of money in which it was payable. It did not contain any statement as to the interest agreed to be paid, nor as to the clause concerning attorney's fees, but we are not prepared to say that this was necessary, unless we should hold that a literal copy of the note should have been set forth in the information.
It is said by Underhill on Criminal Evidence (sec. 31), in speaking of a variance: "In determining whether a variance is material, the question to be decided is, Does the indictment so far fully and correctly inform the defendant of the criminal act with which he is charged, that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of being twice put in jeopardy for the same offense."
It was said in People v. Arras,
The language of that case may well be applied to the promissory note described in this. No one could doubt the identity of the note as being the one described in the indictment. The defendant could not have been misled by the description. But the error of the court in regarding as material a variance which was not so in fact will not render the acquittal less available and conclusive as a bar to a subsequent prosecution. It is provided in section
In People v. Hughes,
In this case there was no material variance, and section
In this case the defendant has been placed upon trial upon a valid indictment. A jury was duly impaneled, and found him not guilty. Our constitution provides "that no person *501 shall be twice put in jeopardy for the same offense." (Const., art. I, sec. 13.)
Jeopardy attaches when a defendant is placed upon his trial before a competent court and jury upon a valid indictment, unless the jury be discharged from rendering a verdict by legal necessity or by his consent, or in case a verdict is rendered, it be set aside at his instance. It is provided in section
The maxim of the common law, that "no man is to be brought intojeopardy of his life more than once for the same offense," is embraced in article V of amendments to the constitution of the United States, and in the constitutions of the several states, in the following language: "Nor shall any person be subject for thesame offense to be twice put in jeopardy of life or limb," It is therefore evident that the defendant has been "once in jeopardy." In such case the court has no authority to order a new trial, at the instance of the prosecution, for errors in the rulings of the court, or in its instructions during the progress of the trial, and such new trial, if granted, would be vain and useless. Conceding that the court improperly directed the jury, the principle is the same.
The court had no power to command the jury to bring in a verdict, and the jury was not bound by the instruction. (Pen. Code, sec. 1118.) The rule is, that if, through misdirection of the judge in matter of law, a verdict is improperly rendered, it can never afterwards, on application of the prosecution in any form of proceeding, be set aside. (1 Bishop on Criminal Law, sec. 665; People v. Webb,
It results from what has been said that the order must be affirmed.
Smith, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the order is affirmed. Garoutte, J., Van Dyke, J., Harrison, J.
Hearing in Bank denied. *502