In Re Chapman

Petitioner, Albert Wayne Chapman, by way of habeas corpus filed with the Supreme Court and transferred to this court, seeks discharge from his confinement in state prison on the ground that he was once in jeopardy on the same charge prior to his conviction in a second trial ending July 30, 1974. In the latter trial he was found guilty of the sale of a controlled substance in violation of section 11352 of the Health and Safety Code.

The former proceeding commenced and terminated on June 5, 1974, when the trial judge declared a mistrial after determining the jury could not agree upon a verdict. (See Pen. Code, § 1140.) Petitioner claims it was error for the trial judge to have declared the mistrial.

In the first trial the presentation of evidence commenced at 11:15 a.m., court was recessed at 11:51 a.m. until 1:30 p.m. for lunch, and the cause went to the jury at 3:20 p.m., a total trial time of less than two and one-half hours. After deliberating until approximately 4:48 p.m., a period of one hour and twenty-eight minutes, the jury returned to the courtroom to announce its verdict. At that time the following took place:

Petitioner makes interrelated contentions of…