James

The appellant was convicted of an assault with intent to commit rape, and he appeals from the judgment, and from an order denying a new trial. There had been a former trial of the case, at which the jury had been discharged by the court for a failure to agree, and at the second trial the appellant pleaded once in jeopardy. On the issue of jeopardy the jury found in favor of the people; and the main contention of appellant is, that the verdict ought to have been in his favor on that issue.

*401 At the first trial, the record shows, after the statement of the jury that they could not agree, as follows: “Whereupon the court, after an examination of the jury separately, and it appearing that it was impossible for the jury to agree, ordered that they be discharged from further consideration of this case.” Section 1140 of the Penal Code provides that such an order may be made, if, “ at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree”; and this clause has been held to be not violative of the provision of the constitution as to jeopardy. (Ex parte McLaughlin, 41 Cal. 211 ; 10 Am. Rep. 272…