Kelly

The defendant was charged in an information filed by the district attorney of San Diego County with the crime of burglary, to which charge he pleaded not guilty and also entered a plea of once in jeopardy, in that he had theretofore been tried for the same offense in the superior court of that county. A jury found the defendant guilty of burglary in the second degree and returned a verdict for the People on the plea of once in jeopardy. Prom the ensuing judgment and from an order denying his motion for a new trial, this appeal is taken.

The only point raised by appellant is that the evidence does not sustain the jury’s verdict against him on the plea of once in jeopardy, the contention being that it conclusively appears that upon a previous trial of the appellant for the same offense a mistrial was ordered without his consent.

At the close of the People’s case this appellant introduced evidence in support of his plea of once in jeopardy only. This evidence consisted of a stipulation and an exhibit. Because of the importance of the question to the appellant the stipulation, the exhibit, and what was said in reference to admitting the exhibit is set forth in full as they appear in…