Greene

The defendant was tried upon an information charging him with embezzlement. After .deliberating six hours the jury returned into court and stated to the judge that they were unable to agree upon a verdict, whereupon they were discharged. When the case came on for trial again, the defendant interposed the pleas of former jeopardy and former acquittal, and in support thereof introduced in evidence the record, showing that he had been once before tried on the same information, and that the jury had been discharged on their statement that they could not agree, after deliberating only six hours.

The court instructed the jury that the evidence offered was insufficient to sustain either of said pleas. It is now claimed that this instruetion was erroneous, as *142 the record must show that it satisfactorily appeared to the judge there was no reasonable probability the jury could agree.

The statute upon which the court acted authorizes the discharge of the jury after the cause has been submitted to them, “ after the expiration of such time as the court may deem proper,” if “ it satisfactorily appears that there is no probability that the jury can agree.” (Penal Code, sec. 1140.) The…