Anger v. Municipal Court

SHOEMAKER, P. J.

Plaintiff George Anger appeals from an order denying him a writ of mandate compelling the dismissal of a criminal complaint.

On August 28, 1963, plaintiff struck a pedestrian while operating a motor vehicle within the City and County of San Francisco. Plaintiff was issued a traffic citation at the scene of the accident for a violation of Vehicle Code, section 21950 (failure to yield the right of way).

On September 3, 1963, the pedestrian having died as a result of the accident, a complaint charging plaintiff with manslaughter, in violation of Penal Code, section 192, subdivision 3 (b), was filed in municipal court.

On September 6, 1963, plaintiff appeared and pleaded not guilty to the manslaughter charge.

On September 18, 1963, plaintiff appeared through his attorney in response to the traffic citation of August 28, 1963, and pleaded not guilty. On the following day, the matter was set for jury trial on September 30, 1963. On that day, the charge was dismissed on the motion of the prosecutor. No complaint charging plaintiff with a violation of Vehicle Code, section 21950, had ever been filed and plaintiff had not waived the filing of such complaint.

Following the dismissal of the above-mentioned charge, plaintiff filed in the manslaughter proceeding a motion to dismiss said action on the ground of double jeopardy. It was plaintiff's contention that the unlawful act which furnished the basis for the manslaughter complaint was the same unlawful act charged in the traffic citation; that plaintiff was placed in jeopardy upon the issuance of that' citation and that the subsequent dismissal of said charge barred his prosecution for manslaughter.

[71]

On February 14, 1964, the municipal court denied plaintiff’s motion to dismiss.

On March 25, 1964, plaintiff filed in the superior court a petition for a writ of mandate compelling defendant municipal court to dismiss the manslaughter charge and exonerate plaintiff’s bail.

On August 5, 1964, after hearing, the court denied the writ prayed for on the grounds that the municipal court never had jurisdiction over plaintiff with respect to the alleged violation of Vehicle Code, section 21950, and that plaintiff had never been in jeopardy with respect to the alleged violation of Penal Code, section 192, subdivision 3 (b).