People v. Superior Court

The People petition for a writ of mandate to compel respondent superior court to vacate an order of mistrial, record a jury verdict, and appoint a time for pronouncement of judgment in People v. Antonia Llabora Thomas.

Mrs. Thomas, the real party in interest referred to hereafter as defendant, was charged with murder of her seven-day-old son. 1 The case was submitted to the jury on May 24, 1967, and the following day the jury returned a verdict of guilty of first degree murder. After the clerk read the verdict and asked whether it was the jury’s verdict, the jurors answered in the affirmative. Defense counsel requested that the jury be polled. In answer to the clerk’s questions, the first four jurors individually stated that the verdict was theirs. The following then occurred:

The People contend that the verdict was, in fact, unanimous, and that in any event, if it were not the trial judge should not have declared a mistrial, but that if he was convinced that one of the jurors had not agreed with the verdict he should have sent the jury back for further consideration under section 1164 of the Penal Code. 2

Assuming without deciding that mandate is available upon *932 the…