Cardenas v. Superior Court

DOOLING, J.

Petitioner seeks a writ of prohibition to prohibit any further proceedings upon an information charging him with the crime of possessing narcotics. The record shows the following facts:

Petitioner was arrested and charged by information with possessing heroin and marijuana in violation of Health and Safety Code, section 11500. He was arraigned, and the matter

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came to trial on April 25, 1961. A jury was impaneled, and a number of witnesses testified for the prosecution and underwent defense counsel’s cross-examination. Petitioner took the stand and testified in his own behalf. Upon cross-examination by the prosecutor, petitioner was asked a question which caused defense counsel to object and to move for a mistrial. The prosecutor joined in the motion. There ensued a dispute between defense counsel and the prosecutor as to the procedural effect of the prosecutor’s having joined in the motion for a mistrial, the trial court indicating that the turn taken by the proceedings “is all right with me.” Defense counsel then requested that his motion be withdrawn, and the prosecutor asked the court to rule on the motions as they stood. The trial judge called both attorneys into chambers, where proceedings which do not appear in the record took place. When "the proceedings resumed in the courtroom, defense counsel again requested that his motion for a mistrial be withdrawn.- The request was denied. The motion for a mistrial was thereupon granted. Defense counsel then moved that any further proceedings against petitioner be dismissed on the ground that he had now been once placed in jeopardy. This motion was denied and a date for resetting the trial was scheduled. When defendant and his counsel appeared for resetting, defendant entered a plea of once in jeopardy based upon the discharge of the jury at the prior trial without his or his counsel’s consent.

We are satisfied that under the facts shown by the record the plea of once in jeopardy is good and the writ sought by petitioner should issue. It is settled that where a plea of once in jeopardy is good, a writ of prohibition may issue to prevent the unnecessary expense and delay attendant upon a futile trial and appeal.

(Jackson

v.