Hutson v. Superior Court of Stanislaus County

Citation21 Cal.Rptr. 753,203 Cal.App.2d 687
CourtCalifornia Court of Appeals
Decision Date17 May 1962
PartiesJames Aivin HUTSON, Petitioner, v. The SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; The PEOPLE, Real Party in Interest. Civ. 137.

Jack B. Lamb and C. Ernest Rushing, Modesto, for petitioner.

Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Nat A. Agliano, Deputy Atty. Gen., Sacramento, for real party in interest and respondent.

CONLEY, Presiding Justice.

James Alvin Hutson petitions this court for a writ of prohibition to prevent his trial for burglary on the ground that he has been once in jeopardy. This procedure, if the facts justify it, is expressly approved in the case of Cardenas v. Superior Court, 56 Cal.2d 273, 275, 14 Cal.Rptr. 657, 659, 363 P.2d 889, 891, where it is said in the opinion written by Mr. Justice Dooling:

'It is settled that where a plea of once in jeopardy is good a writ of prohibition may issue to prevent the unnecessary expense and delay attendant upon a futile trial and appeal. Jackson v. Superior Court, 10 Cal.2d 350, 352-353, 74 P.2d 243, 113 A.L.R. 1422.'

It is claimed by the People that the defendant and one Freddie F. Daniels burglarized the home of Ruby Lorraine Atwood in the city of Modesto on December 23, 1961. At the preliminary examination, both of the defendants were represented by Mr. Walter C. Hancock, the public defender. Each of them was held to answer and after separate informations had been filed, the cases were consolidated for trial. In the superior court the People were represented by the district attorney, Freddie F. Daniels by Mr. Hancock, and the petitioner, James Alvin Hutson, by his present attorneys. A jury was selected and sworn. Following the completion of the People's evidence, the petitioner took the stand and testified. He was cross-examined by the district attorney, and the court then asked Mr. Hancock if he had any questions. He replied that he had, but that he first desired to discuss a matter with the court and opposing counsel in chambers.

The judge, the attorneys and an official reporter then adjourned to chambers. Mr. Hancock stated that the testimony of the petitioner surprised him in that it differed greatly from the statement made to him by that defendant when he represented him prior to and at the preliminary examination; that he desired to cross-examine Hutson on that subject but could not ethically do so in the absence of a waiver, because he had secured the facts which would furnish the basis of the cross-examination from Mr. Hutson as his client. Mr. Rushing refused to waive the objection. The court then stated:

'I don't see what to do but declare a mistrial as much as I hate to under the circumstances. I can't ask somebody else to step into the trial at this time. It's one of these chances that we take when one man starts in to represent two defendants and interviews him and then the other man gets other counsel.'

Mr. Rushing said he would talk with his client, but '* * * I cannot advise my man to waive any of his rights, * * *.' Mr. Rushing left the chambers to consult with petitioner; upon his return he told those present that '* * * Mr. Hutson has advised me that he absolutely with invoke the privilege, and therefore, Mr. Hancock cannot say anything against him. * * * He will not waive the privilege, Your Honor.'

The court said, 'Well, I see nothing to do, gentlemen, but to declare a mistrial and have this thing set again, and we'll have to appoint,' and the jury was recalled and formally discharged.

The petitioner secured leave of court to add a plea of once in jeopardy to his former plea of not guilty, and thereafter he moved the trial court to dismiss the action on the ground that he had been once in jeopardy. The motion was denied, and the petition for a writ of prohibition was filed in this court.

It is a general rule that when a jury has been impaneled and sworn to try a defendant, jeopardy attaches, and the discharge of the jury when not authorized by law and in the absence of consent by the defendant is equivalent to an acquittal of the charge and constitutes former jeojardy on a subsequent trial on the same charge. (Cal.Const. art. I, § 13; U.S.Const., 5th Amend.; Cardenas v. Superior Court, supra, 56 Cal.2d 273, 14 Cal.Rptr. 657, 363 P.2d 889; People v. Webb, 38 Cal. 467; People v. Cage, 48 Cal. 323; Jackson v. Superior Court, 10 Cal.,2d 350, 352, 74 P.2d 243, 113 A.L.R. 1422; Coumas v. Superior Court, 31 Cal.2d 682, 192 P.2d 449; Rodriguez v. Superior Court, 27 Cal.2d 500, 165 P.2d 1.)

It is conceded that the defendant Hutson did not move for a mistrial or expressly consent to it. The Attorney General seeks to justify the court's action on two grounds: first, that the jury was discharged because of necessity and under circumstances that did not constitute jeopardy; and second, that the defendant Hutson gave implied consent to the granting of the mistrial and that, therefore, he cannot complain.

With respect to the first ground of claimed justification, reference is made to the provisions of section 1141 of the Penal Code:

'In all cases where a jury is discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant is discharged during the progress of the trial, or after the cause if submitted to them, the cause may be again tried.'

As examples of the application of this section it has been held that if a defendant effects an escape from custody during trial, the discharge of the jury does not warrant a plea of once in jeopardy at a later trial (People v. Higgins, 59 Cal. 357), and that if a juror becomes critically ill during the trial, the discharge of the jury without the consent of the defendant does not constitute jeopardy. (People v. Ross, 85 Cal. 383, 24 P. 789.) Furthermore, if 'for good cause' a juror is discharged during a trial, and the other members of the jury are dismissed because the required 12 are no longer in the box, this does not furnish ground for a defendant's release on a plea of once in jeopardy. (In re Devlin, 139 Cal.App.2d 810, 294 P.2d 466.) The Attorney General also cites several federal cases which give more discretion to the courts in dismissing juries without leading to double jeopardy than do California state decisions. This insistence upon a relatively stricter rule in California state courts is discussed in Cardenas v. Superior Court, supra, 56 Cal.2d 273, 275, 276, 14 Cal.Rptr. 657, 363 P.2d 889; there the court refers to Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901, in which the Supreme Court of the United States held that the granting of a mistrial on the court's motion and without defendant's consent but for defendant's benefit did not place him in jeopardy as a matter of law under the 5th Amendment. Our California Supreme Court says:

'This holding does not accord with the uniform construction placed by this court upon the jeopardy provision of the California Constitution contained in article I, section 13. [Citing cases.] As stated in Jackson, 10 Cal.2d at page 357, 74 P.2d at page 247: Once the jury is charged with the defendant's deliverance '[h]is jeopardy is real and he cannot be again subjected to jeopardy unless the jury be discharged without rendering a verdict, by his consent, or upon some legal necessity resulting from physical causes beyond the control of the court.' (Emphasis added.)'

In the instant case there was no overweening necessity of granting the mistrial. If counsel for Hustson had objected to cross-examination by Mr. Hancock, as he gave notice in chambers...

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    • United States
    • California Court of Appeals
    • September 12, 2012
    ...prior opinions: Mitchell v. Superior Court (1962) 207 Cal.App.2d 643, 24 Cal.Rptr. 671( Mitchell ),Hutson v. Superior Court (1962) 203 Cal.App.2d 687, 21 Cal.Rptr. 753( Hutson ), and People v. Valenti (1957) 49 Cal.2d 199, 316 P.2d 633( Valenti ).24 We therefore turn to those opinions, in o......
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    • United States
    • California Court of Appeals
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    ...prior opinions: Mitchell v. Superior Court (1962) 207 Cal.App.2d 643, 24 Cal.Rptr. 671( Mitchell ),Hutson v. Superior Court (1962) 203 Cal.App.2d 687, 21 Cal.Rptr. 753( Hutson ), and People v. Valenti (1957) 49 Cal.2d 199, 316 P.2d 633( Valenti ).24 We therefore turn to those opinions, in o......
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    ...cannot be deemed a waiver. (Mitchell v. Superior Court (1962) 207 Cal.App.2d 643, 647, 24 Cal.Rptr. 671; Hutson v. Superior Court (1962) 203 Cal.App.2d 687, 691--692, 21 Cal.Rptr. 753; cf. People v. Valenti (1957) 49 Cal.2d 199, 202, 208--209, 316 P.2d 633. It is true that affirmative condu......
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