Pen. Code, § 1385, provides that the court may in furtherance of justice order an indictment dismissed, and that the reasons of the dismissal must be set forth in an order entered on the minutes. Section 1387 provides that a dismissal, "as provided in this chapter," is not a bar to another prosecution for the same offense in the case of a felony. Held that, where on a prosecution for felony the information was BURNETT, J. In a brief of exceptional dismissed under section 1385, but the order of merit it is earnestly contended by appellant the court did not recite the reasons upon which it was based, the dismissal was a bar to another that he has not had a fair trial. "Prejuprosecution, though the record showed the diced." declare his counsel, "by the misin

justice court, charging the defendant with the same larceny. He was held to answer, and another information was filed, to which a plea of "once in jeopardy" and of not guilty were entered. The trial resulted in a verdict of guilty and for the people, under the direction of the court, on the plea of "once in jeopardy."

structions of the court and by the court's re- | same day another complaint was filed in the fusal to give proper instructions and by the outrageous and villianous misconduct of a juror, the defendant was deprived of a just consideration of his case. The verdict is contrary to the evidence because there is no evidence that defendant abetted or advised anyone to steal. The verdict is contrary to the facts, because receiving or disposing of stolen property is not larceny. The verdict is contrary to law because the defendant has been once in jeopardy." These various propositions are methodically presented with citation of numerous authorities. The consideration of some of the points discussed is deemed unnecessary, but the following we regard as of vital importance:

In support of his contention that he is entitled to the protection of article I, § 13, of the Constitution, providing that "no person shall be twice put in jeopardy for the same offense," it is insisted in the first place by appellant that jeopardy attached for the reason that the jury was discharged without legal consent; the rule being as stated in People v. Webb, 38 Cal. 477, "that when a party is once placed upon his trial for a public offense on a valid indictment, before a competent court with a competent jury, duly impaneled, sworn, and charged with the case, he has then reached and is placed in the jeopardy, from a repetition of which, upon the same indictment, or any other indictment for the same offense, the constitutional shield forever protects him, and after the jeopardy has once so attached, a discharge of the jury, without the consent of the defendant, for any cause within the control of the court, before they have rendered a verdict, is equivalent to a verdict of acquittal."

1. On December 18, 1907, Miller & Lux caused a complaint to be filed in the justice court against defendant, charging him with the larceny of four mules branded HH On January 23, 1908, defendant was held to answer, and on the 30th following an information was filed in the superior court, to which a plea of not guilty was entered. On April 6, 1908, the trial was begun. The jury disagreed, and on April 10th it was discharged; the minutes of the court showing that they "came into court and state to the court that they are unable to agree upon a verdict, and further state that it is impossible to ever reach a verdict, whereupon it is ordered by the court that they be and they Appellant, however, admits that the jury are hereby discharged from further consid- may be discharged because of their inability eration in this case." On June 5, 1908, the to agree upon a verdict, and jeopardy will district attorney made an application for not attach, but it is insisted that this rule can a dismissal of the information "in further- have no application here for the reason that: ance of justice, as provided in section 1385 of "The court did not hear any legal evidence, the Penal Code." He submitted certain rea- or try the issue, or make any finding on the sons for said application, to the effect that question whether or not the jury could agree, sufficient time had not elapsed to secure the but dismissed the jury summarily, on the attendance of the necessary witnesses for the same day of the submission of the cause, plaintiff; that disclosures had been coming without the consent of the defendant." But to light indicating that defendant had an ac- it does appear that the jurors stated to the complice or accomplices in the crime, and that court that it was impossible for them to it was important that the investigations con- agree, and we cannot say that their statecerning the same be completed before the ments were unworthy of belief. We must astrial of the defendant, and that it was impos- sume that the court was entirely satisfied sible to complete them before the expiration that any further effort to secure a verdict of 60 days from the former mistrial; that it would be futile. The statute does not provide would be opposed to the interests of justice just what proceeding shall be taken to deterto disclose at that time the matters being in- mine the probability of an agreement, but no vestigated tending to connect the defendant better method occurs to us than to obtain or his accomplices with other offenses, and from the jurors an expression of their judgthat "the trial of this action will be very ex- ment; and the court, in the exercise of the pensive, and might burden the county general discretion committed to it, may give such fund; that money due for other county ex- weight to this opinion as the surrounding cirpenses and contracts might thus be consumed, cumstances seem to demand. Again, although thereby causing bona fide claimants to lose the jury should not be discharged until the their legal rights to be paid out of the reve- court is satisfied that an agreement is not nues of the current fiscal year." The court probable, still the law does not require an thereupon made the following order: "It is express finding by the court that the jury therefore ordered that the motion of the dis- could not agree, and for that reason were district attorney be and the same is hereby charged. Section 1140 of the Penal Code, the granted and order made as requested. It is authority for the court's action, provides further ordered that the information be and that: "The jury cannot be discharged after the same is hereby dismissed, the defendant the cause is submitted to them until they

it in open court
or unless 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." There is nothing therein re-
quiring the court to state its reasons for dis-
charging the jury, and, in harmony with this
provision, it is stated in People v. Greene, 100
Cal. 142, 34 Pac. 630: "The reasons upon
which the court deems it proper to discharge
the jury are not required to be placed on rec-
ord; it is sufficient that it shows the jury
were unable to agree." It may be remarked
that the minutes introduced in evidence in
the case at bar do sufficiently show that the
jurors could not agree, although in view of
the presumption as to the regularity of the
proceedings of a court of record, and of the
rule imposing upon the appellant the burden
of showing error affirmatively, since nothing
appears to the contrary, it would be presumed,
if necessary to support the judgment, that the
defendant consented to the discharge of the
jury.

In

lent import used in it to describe the crime. The information was therefore fatally defective." In People v. Campbell, 59 Cal. 243, 43 Am. Rep. 257, and People v. Breen, 130 Cal. 72, 62 Pac. 408, the doctrine is reiterated that "an order setting aside an indictment or information is no bar to a future prosecution for the same offense," but it does not appear upon what specific ground the orders were made in those cases. People v. Mooney, 132 Cal. 14, 63 Pac. 1070, there had been a trial, conviction, and a reversal of the judgment by the Supreme Court on the ground that the information was fatally defective. "Upon a return of the remittitur to the trial court the district attorney made a motion in furtherance of justice that the court, dismiss the information." Thereupon the information was dismissed, and the defendant discharged. Proceedings were again taken in the justice court, and a new information filed, upon which defendant was convicted, and the Supreme Court held that he had not been in jeopardy. In People v. Smith, 143 Cal. 597, 77 Pac. 449, it was held that: "The dismissal of a charge of petit larceny in a justice's court on motion of the district attorney, for the purpose of charging a felony for the same offense against the same defendant, based upon a prior conviction of burglary, does not operate as a former acquittal."

A more serious question arises from the fact that the information was dismissed, and the second trial was had upon another information, based upon a new complaint in the justice court charging the same offense. The proceeding is quite unusual, and no doubt should be adopted only when substantial and exigent reasons seem to demand it. The Attorney General seeks justification The foregoing cases are certainly authority for the course pursued in section 1385 of the for holding-if authority other than the proPenal Code, which provides that: "The court vision of the statute is needed—that the may either of its own motion or upon the dismissal of an information in the interests application of the district attorney and in of justice is not a bar to another prosecution furtherance of justice order an action or in- for the same offense. Nor does it signify dictment to be dismissed. The reasons of that "the defendant," as stated by appellant, the dismissal must be set forth in an order "was not the actor in any matter that laid entered upon the minutes." Section 1387 is: the foundation for the plea, but, on the con"An order for the dismissal of the action as trary, all the proceedings taken that created provided in this chapter, is a bar to any and compelled the jeopardy were done against other prosecution for the same offense, if it his wishes and without his act or consent." is a misdemeanor; but it is not a bar if the If there had been a conviction of the defendoffense is a felony." In the case of People ant upon the first information, it would inv. Schmidt, 64 Cal. 263, 30 Pac. 815, it is deed have been a bar to another prosecution, said: "Upon due notice given the district unless it had been set aside at his instance; attorney moved the court to dismiss the ac- but the case is entirely different where the tion and retain the defendant in custody for jury disagree and are discharged by the a re-examination upon a new charge for the court. Then the status is the same as though same homicide. The defendant and his coun- there had been no trial at all, and no consel were present at the hearing of the mo- sent of the defendant is required to justify tion and made no objection, and the court the court in dismissing the case under said ordered the dismissal upon the ground stated section 1385. The Legislature has not atin section 1385, supra. After the entry of tempted to define the expression "in furtherthe order a new charge of murder was made ance of justice," and therefore it is left for against the defendant, upon which he was judicial discretion, exercised in view of the regularly examined before a magistrate and constitutional rights of the defendant and committed to answer. The dismissal of the the interests of society, to determine what former action did not constitute a bar to particular grounds warrant the dismissal. another prosecution for the same homicide. As far as the depleted condition of the treas Section 1387, Pen. Code." In that case, ury is concerned, we cannot give our adherhowever, it is said: "But it was also prov-ence to the view that this is a sufficient ed that the information upon which he was ground for the course pursued. The right of convicted contained no allegation that the homicide had been committed with 'malice

an individual charged with a crime to a speedy trial without unnecessary delay and

2. Complaint is made of various rulings of the court in admitting evidence over the objection of appellant. Conceding some of the rulings to be erroneous, the error seems to have been without prejudice. We, therefore, forego any specific consideration of them, and devote our attention to the fol

portant as that of a creditor of the county, cedure which the Legislature has provided to have his just demands promptly liquidat- for the guidance of the courts, and the omised. The other reasons urged by the district sion to observe it cannot be held to be inattorney are more meritorious, but it would nocuous without an invasion of the authority have been much better if they had been of a co-ordinate branch of the government. embodied in an affidavit, and made the basis If the practice of which complaint is made for an application to have the cause con- is to be continued, it is manifest that great tinued a reasonable period for trial. There- abuse is likely to follow, more dangerous to by the investigations could have been com- society than even the acquittal of the guilty. pleted, the additional witnesses probably secured, and the necessity avoided of adjudicating the vexatious question now presented. But passing this, the statute provides that the order "as provided in this chapter" is not a bar, and the mandate in reference to said order is that it must contain the "reasons of the dismissal." We have no authori-lowing instructions given by the court: ty to disregard this requirement, or to hold (A) "The court instructs you that in dethat it is merely directory. The proceeding termining whether the defendant is guilty of is somewhat harsh, and imposes an addi- the larceny of said animals, as charged, I intional burden upon the defendant, and no struct you that it is not necessary for the substantial departure from the plain provi- people to prove that the defendant actually sion of the statute should be tolerated. In participated in the act of leading or driving the case of People v. Jordan, 63 Cal. 219, away the animals from the possession of it appears that, "Pending a demurrer to an their owner. If you believe to a moral cerinformation, a new information was filed, tainty and beyond a reasonable doubt, from and afterwards the demurrer to the former all of the evidence and circumstances of the information was sustained, but no order was case, that the defendant knew, at the time made or requested permitting a new infor- said animals were placed in his pasture, if mation to be filed, nor was any opinion ex- they were placed there, that the same had pressed that the objection raised could be been feloniously stolen and driven away avoided by a new information," and it was from their owner, and that the defendant did held that the judgment on demurrer to the thereafter aid and abet the thief in taking first information was a bar to another prose- and driving said animals to the pasture on cution. Ex parte Williams, 116 Cal. 512, 48 the river, known as the 'Service' pasture." Pac. 499, is to the same effect, although the court sustained the demurrer "with leave to the district attorney to file a new information." It was held, however, that the man-ant took the animals mentioned in the infordate of the law must be respected in a matter affecting the substantial rights of the defendant. Here there is no pretense that the order of the court recites the reasons upon which it was based. It is true the record shows the grounds upon which the

motion was made by the district attorney, but nothing in the order shows that these grounds were, or any of them was, the basis

for the action of the court.

Again (B): "If you are satisfied from the evidence beyond a reasonable doubt and to a moral certainty that at the time the defend

mation from the Hatch & Service pasture to the corral of Mr. Gordon, if he did take them, or assisted in doing so, he did so with a felonious intent, and if you further find that such taking was prior to the 31st day of October, 1906, and in the county of Madera, and that at said time said animals were the property of Miller & Lux, Incorporated, a corporation, then I instruct you that the offense of grand larceny is complete as charged. It is no excuse for the felonious taking of personal property that such property had been previously stolen by some person other than the person accused, if the person accused thereafter himself feloniously took, stole, or drove away said property, and it makes no difference whether such taking was done with or without the consent of the person who previously stole the same."

There is an objection by the Attorney General that "once in jeopardy" was not sufficiently pleaded. Section 1017, subd. 4, of the Penal Code provides a simple form for such a plea. The defendant followed substantially the language of the Code, but, instead of specifying simply the "time, place and court," he set forth all the facts, including the specific times, places, and courts in any way relating to the plea, so that even laymen could understand the import of the These instructions are separated by anothplea. The only valid objection that could be er instruction upon a different subject. The urged against it is that it contains more than first one, which we have marked "A," is not the law demands, but this does not deprive complete, but the latter clause plainly imthe defendant of the right to have it consid-plies that if the jury believe the facts thereered. It is to be observed that this is no in stated, they must find the defendant guilty "technical" objection to the proceedings, as of larceny. The first sentence in the instructhe term "technical" is commonly understood, tion is not open to objection, as it is not

ticipate in the act of leading or driving away | asked the court to instruct the jury as folthe animals; it is sufficient if he aided and lows: "If you find that M. A. Tucker drove abetted its commission or, not being present, up the yearling in question, and that defendadvised and encouraged the commission. Sec- ant, after it was brought to his lot, opened tion 31, Pen. Code. But the criticism of ap- the gate, and had nothing to do with the pellant is directed at the second clause, which original taking and driving, you will acquit; in effect holds, so it is claimed, that one who and this is so, no matter what connection does not participate in any manner in the defendant had with it thereafter." The aporiginal taking, but subsequently receives the pellate court said: "This sixth requested inproperty into his possession knowing it to struction was directly pertinent and applicahave been stolen, is guilty of larceny the mo- ble to the facts proven, and presented the ment he moves it from one spot to another law in a concise and pointed manner to the while it is so in his possession. "The pawn- vital issue in the case, ** and we are broker who has never heard of the stolen of the opinion it was error to refuse to give watch before it is brought to him, and he is said instruction." In Boyd v. State, 24 Tex. told it is stolen, is guilty of larceny the in- App. 570, 6 S. W. 853, 5 Am. St. Rep. 908, stant he takes it from the counter and puts it it is said: "The prosecution, however, being in the showcase to sell." It is insisted that for theft, and it being absolutely essential in this is not the law, and that in order to con- support of that charge to connect the defendstitute larceny there must be some participa- ant with the original taking to warrant his tion, either directly or indirectly, in the origi- conviction, without such proof of connection, nal taking. It is undoubtedly true that the any subsequent guilty connection with the instructions must be considered in the light stolen animal, such as a receiver of the same, of the facts disclosed by the evidence, and it or as to the party who had illegally altered is often properly held that an instruction, al- the mark or brand, would not be sufficient though erroneous as an abstract proposition to warrant the conviction for theft. To inof law, is not prejudicial because it is appar- culpate a defendant as a principal offender ent from the record that it could not have in- in the crime of theft, the state must show fluenced the verdict of the jury. that he had some connection with or comIn the case at bar, however, there was no plicity in the taking of the property. It evidence of the actual participation of the does not suffice to prove that subsequent to defendant in the original taking from the the taking, and without complicity therepossession of Miller & Lux, and it was con- in, but with knowledge that the property ceded by the people that the mules were had been stolen, he aided the taker to disbrought by a Mexican to defendant's place pose of it." In People v. Maxwell, 24 Cal, and left there to be pastured. Some days after that they were taken to what was known as the "Service" pasture, and about six weeks thereafter they were taken to the Gordon corral mentioned in instruction "B." The jury must have understood from instruction "A" that, though defendant had no connection whatever with the original caption, and no knowledge of it at the time, yet if he afterwards received into his possession the property with knowledge then that it had been stolen, and subsequently participated in the disposition of it, he is guilty of larceny. But the instruction is erroneous because it presupposes that the larceny had been completed before defendant had any guilty knowledge of it. In fact it assumes that the mules "had been feloniously stolen and driven away" before they were received into defendant's pasture, and, the asportation having been terminated, that the defendant aided the thief in getting rid of the property. No man can be guilty, as principal, of a crime who has no knowledge of it until the crime is fully consummated. The facts set forth in the instruction constitute the crime of receiving stolen property and nothing

14, a larceny case, the following instruction was condemned: "Should you believe from the evidence that the witness Morgan stole the property described in the indictment, and that the same was found in the possession of this defendant, and that this defendant and Morgan were associated together, and that the defendant knew that the property was stolen, then and in that case he is equally quilty in the eye of the law, and your verdict should be guilty." In People v. Stakem, 40 Cal. 599, it is held that if the cattle were stolen by another than the defendant, and the defendant afterwards had guilty knowledge that they were stolen, and aided and assisted the other in selling and disposing of said cattle, and was to participate in the profits thereof, he was guilty of the specific offense under the statute of receiving stolen property. In People v. Ward, 105 Cal. 659, 39 Pac. 35, it is said that "the crime of larceny is distinct from that of receiving stolen goods, and proof of the latter crime is insufficient to convict a person who is accused of the former," and it was impliedly held that the following instruction given by the court was correct: "Before you can convict defendant, you must believe beyond In Tucker v. State, 21 Tex. App. 699, 2 S. a reasonable doubt that he is guilty of, or W. 893, defendant was convicted of theft; in complicity with, the original fraudulent his defense being that he bought the animal taking, and any subsequent connection after

more.