People v. Lewis

THOMPSON (IRA F.), J.

The defendant was charged by information, together with one Robert D. Whelchel, with two offenses of robbery. After the jury had been sworn and the trial commenced the court on motion of the district attorney dismissed count I. The jury returned a verdict of guilty of the offense charged. The defendant Lewis was granted a new trial and Whelchel was sentenced to San Quentin. In the minutes of the court of March 10, 1930, we find this entry: “Motion for a new trial is argued and granted. The court orders count I of 'the information be refiled.” In accordance with this order an amended information was ’ filed, charging the defendant with two counts of robbery, the first count being identical with count I in the information previously filed and which had been dismissed. During the second trial, and over the objection of the defendant, who had interposed the plea of former jeopardy, testimony was introduced identifying the defendant as one of two men who robbed the Richfield service station at Slauson and Avalon Boulevard in Los Angeles of about $40 ■ on the evening of January 2, 1930, at about 7 o’clock P. M., which was about one hour and forty-five minutes before another service station at Eighty-first Street and Western Avenue was robbed by two men identified as the defendant and Whelchel. No other witnesses were called whose testimony related exclusively to count I, and after the noon recess the deputy district attorney announced that he had examined the law during the recess and had concluded that

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the defendant had been placed in jeopardy on that count and was willing to stipulate that the jury should be instructed to return a verdict of former jeopardy as to count I. Thereupon the deputy district attorney and counsel for defendant stipulated to the facts showing that count I had been dismissed subsequent to the time the jury was sworn to try the case and that defendant had been re-arraigned on the same charge and entered his plea of former jeopardy. This all took place in the presence of the jury, whereupon the judge said that at the proper time he would give the necessary instructions. He did so instruct the jury and they returned a verdict of former jeopardy as to count I and guilty of count II. This appeal is from the judgment pronounced upon the verdict of guilty and from an order denying appellant’s motion for a new trial.