Stalcup

Petitioner seeks a writ of prohibition or mandate directing the Solano County Superior Court to enter an order of conviction of murder in the second degree and to set aside its order setting the cause for retrial.

Question Presented

Should the trial court instead of declaring a mistrial have entered an order of conviction of defendant of murder in the second degree?

Petitioner was tried in the Solano County Superior Court on an information charging him with violation of Penal Code section 187 (murder). A trial was had and, after deliberation, the jury returned to the courtroom and for an unstated time the following proceedings were had.

The court then stated in effect that it did not want to do anything that might amount to coercing the jury and said, “It’s a matter of degree?” The foreman replied, “That’s right, your Honor.”

The court sent the jury back and in chambers said that the record should show, that they were discussing the applicability of Penal Code section 1157. (That section provides: “Whenever a defendant is convicted of a crime which is distinguished into degrees, the jury . . . must find the degree of the crime of which he is guilty. Upon the failure…