Terrill v. Superior Court

TEMPLE, J. This is an application for a writ of prohibition directed to the above-named court. The petition shows the following facts, which are admitted in the answer: The petitioner was regularly indicted by the grand jury of the county of Santa Clara upon a charge of forgery. Upon this indictment the petitioner was duly arraigned, and thereupon interposed a demurrer to the indictment. The demurrer having been submitted after argument, the court sustained the same in the following order: “Defendant now presents and files a demurrer to said indictment, which is argued and submitted to the court, and the court, after due consideration, orders that said demurrer be sustained and the indictment resubmitted to the present grand jury, to which the defendant excepts.” Thereafter the district attorney presented the charge to the same grand jury which had found the indiet[400]ment to which the demurrer was sustained, which was then in session, and the said grand jury, on the same day, to wit, May 31, 1899, found and returned into court another indictment, charging the petitioner with the same offense, founded upon the same facts with which he had been charged in the first indictment. Afterward the defendant was duly arraigned upon the second indictment, and thereupon moved to set aside the indictment, and objected to being required to plead thereto, because the same was void, and the offense was barred by the provisions of section 1008 of the Penal Code, and for other reasons.

That the second indictment is founded entirely upon the same precise charge as the first was is not controverted. The court denied the motion to set aside the indictment, and also another motion to strike the same from the files, and defendant excepted to both rulings. Thereafter the case was brought to trial before a jury, when defendant renewed his motions with like result. Thereupon before the jury was sworn, defendant by leave of the court interposed, in addition to the plea of not guilty, a plea of former acquittal, and upon the trial proved the foregoing facts as a bar. Nevertheless, the court instructed the jury to return a verdict for the people upon said plea, which it did, and the defendant was convicted of the charge, and the court proceeded to appoint a day for pronouncing judgment upon the verdict. Petitioner avers that, unless prevented, the superior court will proceed to adjudge defendant guilty of a felony, and to sentence him to be confined in the state penitentiary. Petitioner charges that the indictment, trial and verdict are void, and the court is entirely without jurisdiction to pronounce the proposed judgment, or to sentence petitioner. Section 1008 of the Penal Code, as amended in 1880, reads as follows: “If the demurrer is allowed the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment or information, directs the case to be submitted to another grand jury, or directs a new information to be filed; provided that, after such order of resubmission, the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases. ’ ’ Before this amendment, the section read as now down to the