Gordon

The defendant was charged with the crime of assault with intent to commit murder and pleaded not guilty to the charge. He was tried and found guilty of an assault with a deadly weapon. On appeal to this court the judgment entered against him was reversed, and the cause remanded for a new trial. (People v. Gordon, 88 Cal. 422 .) When the case was again called in the trial court, the defendant entered two additional pleas, one that he had already been acquitted of the offense of assault with intent to commit murder by the verdict and judgment rendered on the former trial, and the other that he had been once placed in jeopardy for the offense charged.

At the trial which followed, the defendant, to sustain his plea of former acquittal and once in jeopardy, offered and read in evidence the whole record and proceedings on the former trial. At the conclusion of the trial, the court of its own motion gave to the jury, among others, the following instruction: —

The jury found as directed on the two pleas referred to in the instruction, and also found the defendant “guilty of an assault with a deadly weapon, with intent to inflict upon the person of C. H. Potter, the prosecutor, great…