102 P. 263 | Cal. | 1909
Lead Opinion
This case was identical with that of the People of the State ofCalifornia v. Ho Sing and followed the same course in the district court of appeal. (
It has been well settled by decisions in this state that the discharge of the jury for failure to agree does not enable a defendant to avail himself effectively of the plea of once in jeopardy. (People v. Greene,
For example, it is held in some of the states, including California, that conviction of a lesser offense included within the charge of a greater is an acquittal of the major crime.People v. Gilmore,
In view of the above conclusions we see no reason why the defendant should not be tried for the crime of grand larceny charged in the information. *585
The judgment and the order denying a new trial are reversed.
Angellotti, J., and Henshaw, J., concurred.
Concurrence Opinion
I concur in the judgment. The defendant was in jeopardy as soon as he was placed on trial before a competent court and jury on an information charging grand larceny. If the jury had been discharged without reaching a verdict, and in the absence of one of the statutory grounds for discharging them (Pen. Code, secs. 1123, 1139, 1140), the defendant would have been in a position to interpose the plea of once in jeopardy as a bar to a subsequent trial. But the jury were not discharged without reaching a verdict. They found the defendant guilty of robbery. This verdict, when compared with the averments of the information, was irregular, but it cannot be regarded as an absolute nullity. The judgment entered upon it would, if not directly attacked, have constituted a valid adjudication binding upon the defendant. Its sufficiency could not have been questioned collaterally, as, for example, on habeas corpus. The defendant's successful effort to set aside that verdict and judgment by means of a motion for new trial and an appeal is a waiver of his constitutional right to object to being placed again in jeopardy. In effect, he consents to be tried anew.
Shaw, J., concurred with Sloss, J.
Concurrence Opinion
I concur in the judgment. The verdict of the jury was not a nullity. Comparing it with the rest of the record, including the charge of the court, it is clear that it could not have been returned except as the result of a finding by the jury of every element of the crime of larceny. In other words, the jury did actually find the defendant guilty of larceny, but under the erroneous instruction of the court called it robbery. The verdict, however, is uncertain for the reason that whether construed by itself or in connection with other parts of the record it cannot be known whether the jury would have found it to be grand or petit larceny. This renders a new trial necessary. *586