In Re Kennedy

McFARLAND, J.

This is a petition to this court in behalf of William B. Kennedy for'his discharge on

habeas corpus.

The writ issued, and upon the return of the sheriff, who holds Kennedy, the matter was heard and submitted.

The petition sets forth a large number of arrests of Kennedy on various charges, and subsequent discharges from such arrests by superior court judges on

habeas corpus;

but while these various proceedings may tend to support the contention that these prosecutions were somewhat in the nature of persecutions, they are irrelevant to this present case. Kennedy is now held under a warrant of arrest regularly issued upon an indictment found against him by a grand jury charging him with murder. There is no question of the regularity of the formation of the grand jury, or that the requisite number of jurors acted on the indictment, or as to any other matters touching the general jurisdiction of the grand jury to find the indictment here in question, or that it does not charge a public offense, or as to any deficiency of the indictment in the matter of form or substance. His claim to a discharge is founded on these facts: He was once before tried on a former indictment for the same alleged crime as the one charged in the present indictment; on the former trial he was convicted, but the superior court granted him a new trial on the ground of the insufficiency of the evidence to warrant the verdict, because there was no evidence supporting the charge except the uncorroborated testimony of an accomplice; the people took an appeal from the order granting a new trial, and this court affirmed the order, deciding that the only direct testimony against Kennedy was that of an accomplice, and that there was no sufficient corroborating evidence, and intimating that the testimony of the accomplice himself would not have been sufficient, even if the law did not require corroborating evidence. After the

remittitur

had gone down, the prosecution not being able to state its ability to furnish additional evidence, the court dismissed the indictment under section 1385 of the Penal Code, and ordered Kennedy discharged from custody. Afterwards the grand jury found and returned the said indictment un

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