Stoll

The people appeal from an order of the superior court of San Francisco directing the jury to return a verdict in favor of the defendant.

The defendant was charged with' murder, pleaded not guilty, and thereafter, the case coming on for trial, a jury was duly impaneled and sworn to try the cause.

Thereupon the district attorney made an opening statement to the jury of what the people expected to prove, at the conclusion of which the attorney for the defendant moved the court upon such opening statement to instruct the jury to acquit the defendant. After some discussion between counsel and the court, the court instructed the jury as follows: ‘ ‘ Gentlemen, on the admitted facts in this case, as stated to you by the district attorney, and admitted by the counsel for the defendant, you have heard the discussion that has taken place here by counsel and the court, and I direct you to find a verdict for the defendant, for the reason, in. my opinion, under the facts of the case as admitted, the homicide admitted to have taken place was justifiable.”

In conformity with this instruction the jury returned a verdict of acquittal, and the people, having excepted to the order of the court,…

I dissent. Conceding, as I do, that the trial court erred in “directing” the jury to acquit, upon the opening statement of the district attorney, and also conceding that a trial court should never “advise” a jury to acquit until the evidence on one side is closed, I cannot reach the conclusion that the verdict rendered in favor of the defendant in an absolute nullity, and unless this conclusion can be reached, the order should not, under the authorities, be disturbed.

The California cases cited in the prevailing opinion constitute ample authority for the proposition that where a trial court, acting under the provisions of section 1118 of the Penal Code, erroneously “directs” the jury to acquit, and the jury does acquit, the appellate court will not reverse the order upon the appeal of the people, for the reason that, under the provisions of our constitution, the defendant cannot again be put .upon trial for the offense. It was said in People v. Horn, 70 Cal. 17 : “If a party is once placed upon his trial before a competent court and jury upon a valid indictment, the ‘jeopardy’ attaches, to which he cannot be again subjected, unless ihe jury be discharged from rendering a verdict…

I concur in the views of Justice Lorigan, except that, in my opinion, this appeal cannot be disposed of either by affirmance or reversal of the order of the superior court without a determination of the question whether the verdict of acquittal rendered in obedience to that order constitutes a bar to any further prosecution of the defendant. For, if he is forever freed from further prosecution upon the charge contained in this information, I think we are scarcely justified in disregarding our own precedents in similar eases (People v. Horn, 70 Cal. 17 ; People v. Roberts, 114 Cal. 67 ; People v. Terrill, 132 Cal. 497 ), in each of which the order directing an acquittal, though conceded to be erroneous, was nevertheless affirmed solely because the acquittal was a bar to any further prosecution. The fact that there could be no further prosecution of the defendants in those cases would, I think, have better sustained orders dismissing appeals upon the ground that the proceeding was vain and nugatory than judgments of affirmance; but since the dismissal of an appeal operates as an affirmance, this criticism applies not to the substance but merely to the form of those judgments, which…