In Re Perry

California Court of Appeal Oct 4, 1928 No. Docket No. 1493.Published

Before: Preston

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Holding. The court held that a claim of former jeopardy or acquittal is a matter of defense to be determined by the trial court during the second trial and does not provide a basis for release via habeas corpus.

Issues

Whether a claim of former jeopardy or acquittal provides grounds for release on habeas corpus prior to trial.
Whether the court should determine the validity of a defendant's pleas of former jeopardy and acquittal in advance of trial.

Disposition. remanded

Quotations verified verbatim against the opinion

“The law is well settled that the defense of former acquittal or conviction in one trial is a matter of defense to be relied upon in the second trial; it does not go to the jurisdiction and affords no ground for release upon habeas corpus.”

“Petitioner is, in effect, asking this court to say, in advance of the trial in the superior court, that Robert Perry's pleas of “once in jeopardy” and “former acquittal,” etc., are good. This we are not called upon to do in this proceeding.”

PRESTON (H. L.), J.,

pro tem.

This is a petition to this court in behalf of Robert Perry for his discharge on

habeas corpus.

The petition was filed by Harry S. Whitthorne. A hearing was had and the following facts appeared.

Robert Perry was charged with robbery, committed on the third day of March, 1928. On June 19, 192-8, he was convicted by a jury in the superior court of the city and

[236]

county of San Francisco of robbery in the first degree. On June 21, 1928, the same jury found him insane at the precise time that he committed the robbery. Thereafter, and on the thirteenth day of July, 1928, said Robert Perry was charged by an indictment returned by the grand jury of the city and county of San Francisco with a felony, to wit, a violation of section 2 of chapter 339, Statutes of 1923, the charging part of said indictment being as follows: “Robert E. Perry is accused by the Grand Jury of the said City and County of San Francisco, State of California, by this indictment, of the crime of felony, to-wit: Violating the provisions of Chapter 339 of the Statutes of 1923, committed as follows: The said Robert E. Perry having been, before the 3rd day of March, 1928, in the Superior Court of the State of California, in and for the County of Los Angeles, convicted of the crime of felony, to-wit, Grand Larceny, and upon said conviction was delivered to the State Penitentiary at San Quentin, California, for confinement on the 4th day of October, 1924, and he, the said Robert E. Perry, did thereafter, to-wit, on or about the 3rd day of March, 1928, in the City and County of San Francisco, State of California, wilfully, unlawfully and feloniously possess and carry concealed upon his person a certain firearm, to-wit, a loaded revolver, less than twelve inches in length, and then and there capable of being concealed upon the person. ...”

A bench warrant was issued upon this indictment and Perry was arrested and in default of bail is now held in the county jail. On July 27, 1928, Perry was duly and regularly arraigned in the superior court of the city and county of San Francisco under said indictment and entered five separate and distinct pleas, among them being the following:

In Re Perry

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PRESTON (H. L.), J.,

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