Mitchell v. Superior Court

By his petition for a writ of prohibition petitioner seeks to prevent his being tried a second time, after the jury was dismissed at his first trial ostensibly for inability to reach a verdict. His claim is double jeopardy.

Petitioner was tried by a jury on June 18, 1962, upon a charge of incest, violation of section 288, Penal Code, etc., before Samuel Laidig, Judge pro tempore of the superior court and was represented by the public defender. Both sides having rested the jury was instructed on June 19, 1962 and retired to deliberate at 11:45 a. m. They lunched from 12:10 p. m. until 1:25 p. m. At 4 ;45 p. m. the jury returned to the court room. A judge other than Laidig (pro tern.) was then on the bench and the following took place: ‘ ‘ The Court : The record will reflect that all of the jurors are present in their respective positions, and defendant is present with counsel. Ladies and gentlemen of the jury, Judge Laidig had to go downtown to another trial downtown, and has asked me to stand in for him, and I understand counsel have stipulated that this will be satisfactory. Mr. Maines [Deputy Public Defender] : That’s correct, Tour Honor. Mr. Noland [Deputy District Attorney] :…