I dissent. Conceding, as I do, that the trial court erred in "directing" the jury to acquit, upon the opening statement of the district attorney, and also conceding that a trial court should never "advise" a jury to acquit until the evidence on one side is closed, I cannot reach the conclusion that the verdict rendered in favor of the defendant is an absolute nullity, and unless this conclusion can be reached, the order should not, under the authorities, be disturbed.
The California cases cited in the prevailing opinion constitute ample authority for the proposition that where a trial court, acting under the provisions of section 1118 of the Penal Code, erroneously "directs" the jury to acquit, and the jury does acquit, the appellate court will not reverse the order upon the appeal of the people, for the reason that, under the provisions of our constitution, the defendant cannot again be put upon trial for the offense. It was said in People v. Horn, 70 Cal. 17: "if a party is once placed upon his trial before a competent court and jury upon a valid indictment, the `jeopardy' attaches, to which he cannot be again subjected, unless the jury be dischargedfrom rendering a verdict by a legal necessity, or by his consent;or in case a verdict is rendered, if it be set aside at hisinstance." I do not understand it to be disputed that this correctly states the rule. Our constitution provides that "No person shall be twice put in jeopardy for the same offense." (Art. I, sec. 13.) In People v. Horn, 70 Cal. 17; People v.Roberts, 114 Cal. 67; and People v. Terrill, 132 Cal. 497, the trial court erroneously "directed" the jury to acquit, and the order in each case was affirmed upon the ground that jeopardy had attached, and that the defendant was thereby forever freed from a second trial for the particular offense charged.
It may be true that the order "directing" was ineffectual in the sense that the jury could not have been compelled *Page 699 thereunder to render a verdict of acquittal, and that its only effectual office was to "advise" the jury to acquit. But the jury did render its verdict of acquittal, and that verdict, in favor of defendant, so long as it is not set aside at his instance, by whatsoever errors of the court it may have been induced, and regardless of defendant's consent to or application for its rendition, constitutes an effectual bar to his further prosecution.
"If through misdirection of the judge in matter of law . . . a verdict is improperly rendered, it can never afterwards on application of the prosecution in any form of proceeding be set aside." (People v. Horn, 70 Cal. 18.)
I cannot see that the fact that the order directing an acquittal was made prior to the introduction of evidence materially differentiates this case from those cited.