People v. Finch

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

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.

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 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 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 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 obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed.' The same philosophy probably accounts for the refusal of our appellate courts to give literal effect to the declaration of section 13, Article I, of our Constitution, that 'No person shall be twice put in jeopardy for the same offense'. Various avenues are followed in reaching the conclusion that the defendants may be twice put in jeopardy despite the Constitution. In the early cases of People v. Hunckeler, 1874, 48 Cal. 331, 334, and People v. Higgins, 1881, 59 Cal. 357, 358, the ingenious theory is advanced that when a trial before a jury commences, the jeopardy is 'apparent,' and is 'real' or 'actual' only if nothing interrupts the course of the trial, such as the death of the judge or of a juryman, or the disagreement of the jury. It is concluded, in the Hunckeler case, 48 Cal. at page 334: 'A person cannot be twice placed in jeopardy for the same offense; but, in the cases to which we have referred, the happening of the subsequer event which renders the discharge of the jury necessary, shows that the defendant has never been in actual jeopardy.'

In other cases the philosophy followed seems to be to deny the existence of that which stands in the way of the desired end. Although jeopardy had undoubtedly attached, the court, in People v. Curtis, 1888, 7l Cal. 57, 58, 59, 17 P. 941, 942, stated: 'As the jury was discharged with the consent of the defendant, without rendering a verdict, it must be held that there was no jeopardy and no acquittal.' This statement was quoted in People v. Baillie, 1933, 133 Cal.App. 508, 513, 24 P.2d 528, 530, with the introductory remark: '* * * we do not see how defendant could claim that he had been once in jeopardy * * *.' The language used in People v. Webb, 1869, 38 Cal. 467, 479-480, would seem to put that case in the group being considered in this paragraph: 'We are, therefore, of opinion that under our Constitution, which protects a party from a second jeopardy of life, limb, liberty or property, for the same public offense, whatever its grade, a person once placed upon his trial before a competent Court and jury, charged with his case upon a valid indictment, is in jeopardy, in the sense of the Constitution, unless such jury be discharged without rendering a verdict, from a legal necessity, or for cause beyond the control of the Court, such as death, sickness or insanity of some one of the jury, the prisoner or the Court, or by consent of the prisoner * * *.' Again, in People v. Agnew, 1947, 77 Cal.App.2d 748, 760, 176 P.2d 724, 731, 732, we have the flat statement: 'Where a jury has been discharged with the consent of the defendant without rendering a verdict there was no jeopardy * * *.'

Some cases make a more realistic approach to the result they wish to attain, and while recognizing the fact that the defendant has been in jeopardy, simply hold that, under certain conditions, the defendant may not be heard to say that he has been once in jeopardy. We not...