People v. Huff
Decision Date | 27 October 1967 |
Docket Number | Cr. 12574 |
Citation | 63 Cal.Rptr. 317,255 Cal.App.2d 443 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE, Plaintiff and Respondent, v. Charles Oscar HUFF, Defendant and Appellant. |
Royce R. Lewellen, Solvang, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., A. Barry Cappello, Deputy Atty. Gen., for plaintiff and respondent.
This appeal presents the question whether defendant was tried on a charge after having been once in jeopardy.
Charged by information with attempted robbery, defendant pleaded not guilty. On January 18, 1966, a jury was impaneled and sworn. 1 After the information was read, the trial judge called a noon recess, indicated the court would reconvene at 2 p.m. that afternoon and admonished the jury not to converse among themselves or with any third person upon any issue involved in the case. Between 2 and 3:10 p.m., outside the presence of the jury, an off-the-record discussion took place in chambers between the court and counsel for the parties. When the trial reconvened, the judge called a police officer to the witness stand.
In response to questioning by the judge, the officer testified that he had observed defendant conversing with two of the jurors during the recess period. The officer's testimony was as follows:
Upon completion of this testimony, the court, without more, declared a mistrial, ordered the jury discharged and ordered that defendant serve five days in jail for contempt of court. Defense counsel asked to be heard. He stated that, while his client heard the admonition to the jury not to discuss with anyone any matters concerning the trial, 'there is no indication that that was at all what was discussed.' Counsel further stated that he felt responsible for what happened because he had not warned defendant to stay completely away from the jurors.
When counsel began to speak on the question of defendant's intent, the judge interjected:
The following discussion then took place between the court and defense counsel:
Defendant then testified, denying that he had talked with any of the jurors; he had returned to the court room after eating lunch; while the attorneys were in the judge's chambers, he walked back out into the hall; there was a water cooler in the hall; he went over to it and had a drink; one of the lady jurors walked up; as a courtesy, he asked if he could fill her cup for her; she gave no reply so he filled the cup, gave it to her and she walked away; he then turned around and asked, 'Does anybody else what some?'; at this time some of the jurors were in the hall and the rest were in the court room; the bailiff was by the cooler putting cups in the rack.
Upon being recalled, the officer testified that when he saw defendant speaking to the jurors, the bailiff was not present.
The bailiff testified he had not observed defendant talking to any of the jurors. However, he had spent part of the time during the recess in the judge's chambers.
None of the jurors were asked to testify. The judge reset the trial for February 1, 1966, before a new jury.
On February 1st, before the new jury was chosen, defendant was permitted to enter a plea of once in jeopardy. The court denied the motion. The case was thereafter tried and defendant was found guilty as charged. His appeal is from the judgment.
Once a jury has been impaneled and sworn to try a defendant, jeopardy attaches, and its subsequent discharge when not authorized by law or by d...
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