Summary
In Ex Parte Fenton, 77 Cal. 183, 184 [19 P. 267], it was held that, "The fact that defendant had been previously arrested on the same charge, examined before a magistrate, and discharged, is not a bar to a second arrest and examination."
Summary of this case from People v. JosephOpinion
Application for a writ of habeas corpus. The petitioner had once been arrested on a charge of grand larceny. Upon an examination before the committing magistrate, he was discharged. Afterwards he was again arrested on the same charge, examined before a different magistrate, and committed for trial. He thereupon applied to be discharged on habeas corpus, on the ground that he had been once in jeopardy.
COUNSEL:
P. Reddy, for Petitioner.
James W. Bartlett, and J. W. Turner, for Respondent.
JUDGES: In Bank.
OPINION
THE COURT
The record in this case and the agreed statement upon which it is submitted, taken together, show sufficient cause for issuing the warrant under which defendant is held. The fact that defendant had been previously arrested on the same charge, examined before a magistrate, and discharged, is not a bar to a second arrest and examination.
A person cannot [19 P. 268] be said to have been once in jeopardy until he is put upon trial before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance.
The writ is discharged, and the defendant remanded to the custody of the sheriff.