Lovely

Defendant was charged with assault with a deadly weapon, in violation of section 245 of the Penal Code. On January 20, 1970, a jury trial commenced. At the close of the trial, during the jury’s deliberation, the jury at its request was returned to the jury box for the reading of one witness’ testimony and for the re-reading of jury instructions. The jury was then retired for further deliberation. On January 23 the jury sent a note to the court stating they were a “hung jury.” The court ordered the jury returned to the jury box and inquired whether or not it was a hung jury. The jury as a group stated that it was hopelessly hung. Whereupon, the court declared the trial a mistrial, excused the jury and reset the case for a jury trial.

On January 29, 1970, at the commencement of the retrial of the case, defendant filed a “once in jeopardy” notice. On January 30, defendant’s plea of once in jeopardy was denied. The jury returned its-verdict of guilty as charged.

Defendant’s motion for new trial and probation were denied and defendant was sent to state prison for the term prescribed by law.

Defendant appeals from the judgment of conviction.

On November 4,1969, Norman Heath…