People v. Finch, Cr. A

• Court: United States Superior Court (California)
• Writing for the Court: BISHOP
• Citation: 119 Cal.App.2d Supp. 892,258 P.2d 1124
• Parties: 119 Cal.App.2d Supp. 892 PEOPLE v. FINCH. 3008. Appellate Department, Superior Court, Los Angeles County, California
• Docket Number: Cr. A
• Decision Date: 23 June 1953

Page 1124

258 P.2d 1124 119 Cal.App.2d Supp. 892 PEOPLE
v.
FINCH. Cr. A. 3008. Appellate Department, Superior Court, Los Angeles County, California. June 23, 1953.

[119 Cal.App.2d Supp. 894] S. Ernest Roll, Dist. Atty., Jere J. Sullivan, Deputy Dist. Atty., Los Angeles, for appellant.

George Halverson and Byron Halverson, Los Angeles, for respondent.

BISHOP, Judge.

The People have appealed from an order dismissing this action. The charge made against the defendant was that he had modified the exhaust system of a Mercury coupe in a manner that increased the noise of the motor over that of the original muffler, in violation of section 673, Vehicle Code. After a jury had been selected and one witness was sworn, the defendant moved for a dismissal on the ground that section 673 is unconstitutional. The defendant contends (1) that the People have no right of appeal, because jeopardy had attached, and, inconsistently, (2) that the order of dismissal was correctly made. We agree with neither contention.

The procedural facts that we have related all appear from the record before us, consisting of the complaint, the minutes and the notice of appeal. As the record

Page 1125

fully presents the problem which the People wish to have determined on this appeal, no occasion arose for the preparation of a statement on appeal, which would be required under other circumstances. Rule 4, Rules on Appeal from Municipal Courts and Inferior Courts in Criminal cases, published in 29 Cal.2d 2; 50 West's Calif. Digest 968. True, the clerk's minutes do not state that the jury was sworn, but, as they do not reveal that it was not sworn, we infer that it was, an inference based upon the fact that it is not probable that a [119 Cal.App.2d Supp. 895] witness was sworn when the jury had not been. As the inference is one essential to the premise upon which the defendant's contention is based, he cannot find fault with our action in drawing it, and the People are not hurt by it.

The statute, sec. 1466, Penal Code, now authorizes the People to appeal '(a) From an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy'. We agree with the defendant in his insistence that the defendant had been placed in jeopardy--if the jury had been sworn. See discussions of 'jeopardy' in People v. Matiasevich, 1936, 12 Cal.App.2d Supp. 759, 55 P.2d 942, 943, and in Jackson v. Superior Court, 1937, 10 Cal.2d 350, 352, 355-357, 74 P.2d 243, 244, 246-247, 113 A.L.R. 1422. Citing a number of cases in support of their observation that 'The substance of this definition has been approved by the courts of California,' our Supreme Court, in the Jackson case, 10 Cal.2d 355-356, 74 P.2d 246, quoted this definition of former jeopardy from 8 Ruling Case Law, page 138: "A person is in legal jeopardy when he is put on trial, before a court of competent jurisdiction, on an indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance, and a jury is said to be thus charged when it is impaneled and sworn. The opinion prevails to some extent that jeopardy does not attach until a verdict is rendered. This doctrine, however, limits the term jeopardy to mean the same as autrefois acquit or convict. But the word means exposure to danger, and where a person is put on his trial on a charge of a crime before a jury sworn to decide the issue between the state and himself, he is then exposed to danger in that he is in peril of life or liberty. * * *"

There remains the question. Has the defendant waived jeopardy? It is to be regretted that there has not been a more meticulous use of terms throughout the literature dealing with this matter of jeopardy, but we must take it as we find it. Even the constitutional provisions are not given a literal interpretation. The Fifth Amendment states: 'nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *.' Of this safeguard, the Federal Supreme Court remarked, in Wade v. Hunter, 1948, 336 U.S. 684, 688, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978: 'The [119 Cal.App.2d Supp. 896] double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable...