
    [No. 20398.
    In Bank.
    September 28, 1888.]
    THE PEOPLE, Respondent, v. FRANK TRAVERS, Appellant.
    Criminal Law—Plea of Once in Jeopardy — New Trial after Reversal on Appeal. — When the defendant procures a reversal of a former judgment of conviction upon app..al, though asking for a discharge for insufficiency of the verdict, and not for a new trial, if the prayer for a discharge be denied, and a new trial ordered, the defendant will be regarded as impliedly assenting to all the consequences legitimately following such reversal, and a plea of once in jeopardy by reason of the former trial cannot be sustained upon the new trial.
    Appeal from a judgment of the Superior Court of the city .and county of San Francisco, and from an order denying a new trial.
    
      Garret W. McEnerney, for Appellant.
    
      Attorney-General Johnson, for Respondent.
   • 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 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.)

It is true that in his former appeal from, the judgment the defendant did not ask for a new trial, but demanded a reversal of the judgment, and that he be discharged. This last prayer was denied by the court, and a new trial ordered in accordance with section 1260 of the Penal Code.

In People v. Olwell, 28 Cal. 456, it was held that, if the defendant in a criminal case is convicted and appeals, and the judgment is reversed, the appellate court may order a new trial, even though the defendant does not move for such new trial, and denies the power of the court to grant it; and that where the judgment in such a case is reversed and a new trial ordered, he cannot successfully set up the former trial in bar of another trial and conviction. People v. Barric, 49 Cal. 342, is to the same effect.

When the defendant appealed from the judgment and procured a reversal, one of the effects of which was the ordering of a new trial, the judgment and verdict in such a case must be assumed to be set aside at the instance of the defendant, upon the theory that he who procures the reversal or affirmance of a judgment impliedly assents to all the consequences legitimately following such reversal or affirmance. (1 Bishop’s Criminal Law, secs. 1004, 1016.)

The judgment and order appealed from are affirmed.

Thornton, J., Paterson, J., and Sharpstein, J., concurred.

McFarland, J., dissented.  