Brannon

Defendant was convicted of murder in the first degree and was sentenced to imprisonment for the term of his natural life. From the judgment and an order refusing him a new trial he appeals. His principal point is that he was formerly acquitted of the same offense but that he was denied an opportunity to plead such former acquittal.

The facts necessary to an understanding of appellant’s chief contention are these: By an indictment containing two counts defendant was charged, in count one, with an assault with a deadly weapon upon his wife, Helen Brannon, with intent to commit murder, and in count two- with the murder of one Margaret Cronin. To both counts defendant interposed the plea of “not guilty.” He thereupon moved for a separate trial upon each count. His motion was granted, and the district attorney elected to try him first upon count one. That trial resulted in a verdict of acquittal. On the day set for his trial on the second count defendant moved the court for permission to withdraw his plea of “not guilty” to that count and to enter a plea of once in jeopardy and former acquittal. The motion was made with reasonable diligence after the verdict of acquittal on the first…