Bennett

The defendant was charged, by information, with the crime of assault with intent to commit murder, and, on being arraigned, pleaded not guilty to the charge. He was tried and found guilty of assault with a deadly weapon. Thereupon, he gave notice of a motion for a new trial, which motion was subsequently heard and granted upon the ground that the verdict was not supported by the evidence. Thereafter, without being called upon or offering to enter any new plea to the information, he was again tried in the same court and before the, same judge, and found “guilty as charged.” In due time he moved for a new trial upon several grounds, and, among others, that he was acquitted by the former verdict of the charge of assault to commit murder, and had been twice placed in jeopardy for that offense. The court granted the motion upon the last-named ground, and from that order the people appeal.

Our constitution provides that “no person shall be twice put in jeopardy for the same offense” (Const., art. I, sec. 13); and the Penal Code contains the following provisions:

May the defendant for the first time raise the question of once in jeopardy upon his motion for a new trial? The practice…