People v. James

McFarland, J. The appellant was convicted of an assault with intent to commit rape, and he appeals from the judgment, and from an order denying a new trial. There had been a former trial of the case, at which the jury had been discharged by the court for a failure to agree, and at the second trial the appellant pleaded once in jeopardy. On the issue of jeopardy the jury found in favor of the people; and the main contention of appellant is, that the verdict ought to have been in his favor on that issue.

[401]At the first trial, the record shows, after the statement of the jury that they could not agree, as follows: “Whereupon the court, after an examination of the jury separately, and it appearing that it was impossible for the jury to agree, ordered that they be discharged from further consideration of this case.” Section 1140 of the Penal Code provides that such an order may be made, if, “ at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree”; and this clause has been held to be not violative of the provision of the constitution as to jeopardy. (Ex parte McLaughlin, 41 Cal. 211; 10 Am. Rep. 272; People v. Cage, 48 Cal. 323; 17 Am. Rep. 436; People v. Soto, 65 Cal. 621.) But appellant contends that this rule does not apply to the case at bar, on account of certain things which transpired at the time the jury was discharged.

The appellant was charged in the indictment with having committed the alleged crime upon the person of a girl under fourteen years old, — that being the-legal age of consent under our statute. After the jury had been regularly impaneled at the first trial, the district attorney put the father and mother of the girl,, and also the girl herself, upon the witness-stand, and,, evidently to the surprise of the prosecution, they all testified that the girl was fourteen years old several months- before the date of the alleged crime. The district attorney then stated to the court that as the case of the prosecution depended upon proof of the fact that the-girl was under fourteen, it was useless to introduce further- evidence, and no further evidence was introduced. The court then instructed the jury to return a verdict of not guilty, but also, pursuant to the provision of section 1118 of the Penal Code, that they were not bound by his advice. The jury then retired, and, after some time, the exact period not being shown, thejr were- brought into court, and asked if they had agreed upon a verdict. The foreman said that they disagreed.- and some conversation then took place between the court-and- the foreman of