Paulson
Paulson v. Superior Court
Opinion
lead Opinion
Traynor, J.
In this proceeding in prohibition petitioner seeks to preclude his trial on two of grand theft on the ground that the trial would twice put him in jeopardy in violation of article I, section 13 of the California Constitution.
On December 18 and 19, 1961, petitioner was tried by a jury on two counts of grand theft. The jury retired at 4:12 p.m. on December 19 and returned to the courtroom at 9:05 p.m. When the court asked if the jury had arrived at a verdict, the foreman replied, “Your Honor, we have not reached a verdict. We have some questions that we would like to ask and advice from the Court if we may?” The first question, *4 relating to Count 1, was whether a charge of theft is nullified if the victim agreed to accept weekly payments as restitution. The court reread an instruction that restitution is not a defense. The second question, relating to Count 2, was “would negligence in the care of the funds, whereby another person may have stolen the money still leave the Defendant responsible and guilty of theft?” The court answered: “Well, Mr. Foreman, we are here only concerned with the charge against the Defendant. No one else is charged with theft. The Defendant is not…
dissent Opinion
McComb, J.
I dissent.
On December 18 and 19, 1961, petitioner was tried by a jury on two counts of grand theft. The jury retired at 4:12 p.m. on December 19 and returned to the courtroom at 9 :05 p.m. When the court asked if the jury had arrived at a verdict, the foreman replied: “Your Honor, we have not reached a verdict. We have some questions that we would like to ask and advice from the Court if we may?”
The first question, relating to count 1, was whether a charge of theft is nullified if the victim agreed to accept weekly payments as restitution. The court reread an instruction that restitution is not a defense.
The second question, relating to count 2, was, “Would negligence in the care of the funds, whereby another person may have stolen the money still leave the Defendant responsible and guilty of theft?” The court answered: “Well, Mr. Foreman, we are here only concerned with the charge against the Defendant. No one else is charged with theft. The Defendant is not charged with negligence, he is charged with theft. If from the evidence you find that the Defendant is not guilty, find him not guilty. If under the evidence you find that he is guilty, find him guilty in accordance…