Bennett

This is an appeal from the judgment rendered upon the verdict of a jury finding defendant guilty of assault with intent to commit murder. In January, 1895, the appellant, Bennett, was placed on trial before the superior court of Alameda county under an information charging him with an assault with intent to commit murder. The jury found the defendant guilty of the lesser offense of assault with a deadly weapon. He moved for a new trial upon the ground that the verdict was not supported by the evidence, and his motion was granted. In May, 1895, he was again put on trial, under the same information, before the same court and the same judge. A jury was impaneled and sworn to try the ease, and without any other or further arraignment of appellant, or any new or other plea, the trial proceeded to its close, and the jury found Bennett guilty of assault with intent to commit murder. He again moved for a new trial, which was granted upon the sole ground that he had been twice put in jeopardy for the same offense. From this order the people appealed. The opinion and judgment of this court reversing the order granting defendant a new trial will be found reported in the one hundred and…

I concur in the judgment solely because it has passed out of the power of the court to decide the case upon its merits. In doing so, I desire to subjoin an opinion which I prepared at the time a rehearing of the former appeal was denied, setting forth my reasons' for dissenting from that order.

Having dissented from the order denying a rehearing of this cause by the court in bank, and being profoundly convinced that the decision given is not only erroneous, but mischievous in its consequences, I deem the matter of sufficient importance to justify a statement of the grounds of my dissent. It is not alone because the necessary result of the judgment which has thus become final is to consign this defendant to the state prison, as a felon, upon conviction of a crime of which he has once been legally acquitted, that I feel constrained to record my earnest protest against the decision of the court, but it is more especially because the practice which must henceforth obtain in similar cases in this state is at variance with elementary and fundamental principles of pleading and procedure, unsupported by any principle or authority, and in conflict with numerous express adjudications of…