Mitchell v. Superior Court

ASHBURN, J.

By his petition for a writ of prohibition petitioner seeks to prevent his being tried a second time, after the jury was dismissed at his first trial ostensibly for inability to reach a verdict. His claim is double jeopardy.

Petitioner was tried by a jury on June 18, 1962, upon a charge of incest, violation of section 288, Penal Code, etc., before Samuel Laidig, Judge pro tempore of the superior court and was represented by the public defender. Both sides having rested the jury was instructed on June 19, 1962 and retired to deliberate at 11:45 a. m. They lunched from 12:10 p. m. until 1:25 p. m. At 4 ;45 p. m. the jury returned to the court room. A judge other than Laidig (pro tern.) was then on the bench and the following took place: ‘ ‘ The Court : The record will reflect that all of the jurors are present in their respective positions, and defendant is present with counsel. Ladies and gentlemen of the jury, Judge Laidig had to go downtown to another trial downtown, and has asked me to stand in for him, and I understand counsel have stipulated that this will be satisfactory. Mr. Maines [Deputy Public Defender] : That’s correct, Tour Honor. Mr. Noland [Deputy District Attorney] : That’s correct, Tour Honor. The Court : Satisfactory to the defendant and the People. I know nothing of this case, so I am going to ask a few questions of the foreman. Who is the foreman of this jury? Thank you. The end of the day has come, and the answer to my question will determine whether or not I should keep you a little longer or not, and so I will ask you this: the question is, has the jury a possibility of returning a verdict with a little bit more deliberation. The Foreman : At this point I would say no, Tour Honor. The Court : I take it the jury has not arrived at a verdict now. The Foreman : Tes, sir. The Court : Can you, without revealing how it stands, in whose favor, can you tell me the numerical division. The Foreman : By counts, Tour Honor? The Court: Tes, so many one way against the other, without saying in whose favor. Mr. Noland : Excuse me just a minute, not by counts you don’t mean, Tour Honor, there are five counts. The Court : Oh, I meant by how they stand—eight to four or five, something like that. How is the jury divided, without stating in whose favor. Is it six to six? The Foreman: Tour Honor, on one state

[646]

ment it would be- The Coubt: First of all, liow many counts are there. You say in one statement, are there several counts? The Fobeman: Yes there are, Your Honor. The Clebk: Four, Your Honor. The Coubt: Four counts. As to the first count ? The Fobeman : To the first count- The Coubt: Now remember, don’t tell me in whose favor. The Fobeman: I would say it would be 80 per cent in favor of one direction. The Coubt: It is not percentage. In other words, there are twelve jurors, you would say six or-The Fobeman: Well, yes, sir; six definite votes and six undecided. The Coubt : Now count number two. The Fobeman : Ten votes, two undecided. The Coubt : Count number three. The Fobeman: Ten and two. The Coubt: Count number four. The Fobeman: Ten and two. The Coubt: And it is your opinion, is it, that with another half an hour or so deliberation this evening you could not arrive at a verdict? The Fobeman : I do not believe so, Your Honor. The Coubt : Could we confer, counsel, up here out of the hearing of the jury. (Whereupon a discussion was had between the Court and counsel at the bench, outside the hearing of the jurors, which was not reported.) The Coubt: Well, ladies and gentlemen of the jury, you heard the foreman’s statement, does anybody differ with his version of it? No one differs. If anyone differs with his version, will you raise your hand, number one as to the division, how it stood, and number two, as to a possibility of a reaching a verdict with a little more deliberation. No one disagrees with the foreman. Judge Laidig, when he asked me to sit in for him, said that in his opinion he would declare a mistrial at the end of the day and would not lock you up. I, therefore, do not feel that I will overcome his decision. It is his decision that deliberations would end at this time, unless the foreman would indicate that a little more time would be needed to arrive at a verdict. In view of the fact that the foreman has indicated, with the assent of all other jurors, that the jury has not arrived at a verdict at this time, quarter to five, and that even with a little bit more deliberation there is no possibility of arriving at a verdict tonight, I do hereby declare a mistrial. And ladies and gentlemen of the jury, this means that your services are terminated, this trial has ended.” It does not appear from the record that either counsel had anything to say for or against the discharge of the jury or that defendant or his counsel in any way manifested consent thereto.