People v. Ny Sam Chung

Garoutte, J. The defendants were prosecuted in the police court of the city and county of San Francisco for the offense of petit larceny in stealing one gold [305]bracelet of the value of twenty-seven dollars, the property of Jeong Koong. A jury trial was waived, and after the evidence was concluded, upon the suggestion of the prosecuting attorney that the property was taken from the person of said Koong, and that therefore the offense was grand larceny, the court ordered the action dismissed. The defendants were thereafter placed upon trial in the superior court upon a charge of grand larceny upon an information alleging the same facts set out in the complaint in the police court, and the further fact that the property was taken from the person of said Jeong Koong. In addition to their plea of not guilty, they plead that they had been once in jeopardy, and the determination of that question is the only matter involved upon this appeal.

The solution of the question as to whether a defendant has been placed in jeopardy in many cases is a matter of considerable difficulty, especially in the light of the variance existing in the decisions of the courts upon the subject. Bishop in his work on Criminal Law, sec. 1027, states the general rule to be: “When the indictment is sufficient, and the proceedings are regular, before a tribunal having jurisdiction, down to the time when the jeopardy attaches, there can be no second jeopardy allowed in favor of the state on account of any lapse or error at a later stage.” In Bennett and Heard’s-Leading Criminal Cases, 537, the correct rule for the determination of the question as to the existence of a prior jeopardy for the same offense is thus stated: “ A former conviction or acquittal of a minor offense is a bar to a prosecution for the same act, charged as a higher crime, whenever the defendant on trial of the latter might be legally convicted of the former had there been no other prosecution.” The author illustrates by saying: “ If, therefore, a person has been indicted and convicted of manslaughter, he cannot be again prosecuted for the same homicide charged as a murder; for though these crimes are not exactly the same, yet as the person when on trial for murder might, under the rules of law, have [306]been convicted of manslaughter if the evidence failed to sustain the more serious offense, it would follow that if he had been already convicted of manslaughter in a prior indictment for that crime alone, he might on the trial for murder be convicted of the same identical crime, and thus be punished twice.” The correctness of the converse of the foregoing rule is even more manifest, viz., a conviction or acquittal of a higher offense is a conviction or acquittal of all lesser offenses necessarily included therein. Bishop on Criminal Law, sec. 1057, fully indorses the principle laid down in the authority just quoted. The author says: “Where the conviction or acquittal is upon an indictment covering no more than one of the smaller crimes included within a larger, will it bar fresh proceedings for the larger ? If it will not, then the prosecutor may begin with the smallest and obtain successive convictions ending with the largest; while if he had begun with the largest, he must there stop, — a conclusion repugnant to good sense.” The same principle is declared in Wharton on Criminal Law, sec. 563.