The relator killed his wife and was indicted for manslaughter. On the trial under this indictment the jury disagreed. Subsequently he was indicted for murder in the first degree because of the same homicide and taken into custody. This writ was then sued out on the ground that the trial under the indictment for manslaughter placed him in jeopardy and that, therefore, he could not be tried on the present indictment, which has superseded the former one, without being placed in jeopardy a second time.
On the appeal two questions were presented. The first one was the one just suggested whether the trial under the first indictment amounted to so placing the relator in jeopardy that he could not be tried again under the present indictment based on the same offense. The second question was whether the first question could be raised in proceedings on habeas corpus.
We think that the relator was entitled to have decided in habeas corpus proceedings the question whether he would be placed in jeopardy a second time if tried under the second indictment charging him with murder. (People ex rel. Stabile v. Warden,etc., 202 N.Y. 138.)
We do not think, however, that the relator was so *Page 175 placed in jeopardy by reason of his trial upon the first indictment for manslaughter and which resulted in a disagreement and necessary discharge of the jury, that such trial is a bar to his trial under the present indictment.
In accordance with these views the order appealed from should be affirmed.
HISCOCK, COLLIN, CUDDEBACK, HOGAN, CARDOZO and SEABURY, JJ., concur; WILLARD BARTLETT, Ch. J., absent.
Order affirmed.