People v. Travers

• Searls, C. J.—The The defendant was informed against for an attempt to commit burglary, and was convicted. The appeal is taken from the judgment, and from an order denying a new trial.

The only error relied upon is based upon the instruction of the court below, directing the jury to find for the state, upon the defendant’s plea of once in jeopardy, and its refusal to instruct the jury to find for the defendant upon that plea.

The facts upon which the plea of once in jeopardy is based are as follows:—

Defendant had been previously tried upon the same information, whereupon a verdict was rendered of “guilty as charged,” but without specifying whether the attempt to commit burglary was of the first degree (committed in the night-time), or of the second degree (in the daytime).

Upon this verdict, so rendered, judgment was entered punishing defendant for a term of two years in the state prison.

An appeal was taken from the judgment, and a reversal had, and new trial ordered by this court.

On the going down of the remittitur, the defendant filed a supplementary plea of once in jeopardy.

The second trial resulted in a verdict finding the defendant guilty of an attempt to commit burglary of the second degree.

The question is, Was the defendant, upon these facts, entitled to a verdict in his favor upon his plea of once in jeopardy?

“No person shall be twice put in jeopardy for the same offense.” (Cal. Const., art. 1, sec. 13.)

A person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction, upon information or indictmemt sufficient in form and substance to sustain a conviction, and a competent jury has been [178]regularly charged with his deliverance. (Cooley’s Constitutional Limitations, 404.)

If, however, the court had no jurisdiction of the cause, or if the indictment or information was so defective that no valid judgment could be rendered upon it; or if, by any overruling necessity, the jury are discharged without a verdict, or the jury are discharged with the consent of the defendant, either express or implied; or if, after verdict against the accused, it has been set aside on his motion for a new trial, or on writ of error, or in arrest of judgment;—in all these and a few other cases which might be enumerated, the accused may again be put upon trial, and the proceedings had will constitute no protection. (Cooley’s Constitutional Limitations, 405.)