People v. Arnett

GAROUTTE, J.

The defendant was tried upon an information charging assault with intent to commit murder. He was convicted of the crime of assault with a deadly weapon. Upon appeal to this court it was held that the verdict was a nullity, as the offense of which the defendant was convicted was not an offense included within the information upon which he was tried.

(People v. Arnett,

126 Cal. 680.) Upon the second trial the defendant was convicted of the offense charged in the information; but the court instructed the jury to find against him upon Ms plea of once in jeopardy and a former acquittal. He now claims this was error upon the part of the court, and that the proceedings of the first trial resulted in placing him in jeopardy, which should have demanded his discharge at the second trial.

It was held upon the previous appeal that the verdict rendered at the first trial was a nullity. Indeed, by that decision, the case after verdict stood exactly the same as though the verdict had been one declaring the defendant guilty of the crime of robbery. The case in principle is similar to that of

People v. Curtis,

76 Cal. 67. The defendant has been in jeopardy by reason of the first trial and the void verdict rendered therein, and is now entitled to his discharge, unless at the first trial he consented to the discharge of the jury without a verdict, and thus waived the jeopardy which had attached to him. It is said in the Curtis case: “The verdict constituted no legal reason for the discharge of the jury, and, in our judgment, if they were discharged without consent of the defendant (except in the cases specially provided for) it operated as an acquittal of the defendant.....Under our statute, in a case like tMs, the consent must appear on the minutes of the court.”

[308]

In this case the jury were not discharged upon any of the statutory grounds, and we find no consent in the minutes upon the part of the defendant that the jury might he discharged. In the Curtis case the minutes of the trial court were not before this court, but in this case the minutes are before the court, and, under these circumstances, nothing is to be presumed, for the minutes speak for themselves. This is the vital difference between the two cases.