The petition for writ of habeas corpus is denied. There is no showing that any evidence of former jeopardy was introduced before the trial court; in fact, the record of the superior court which is before this court fails to show any such evidence. The date referred to in the petition upon which it is alleged the former jeopardy attached is on or about the date of the preliminary hearing had by petitioners. There is no provision in law for the doing of a useless act. The section relied upon by petitioners, i. e., subd. 2, see. 1155, Penal Code, is not applicable where no evidence is introduced to either prove or disprove the plea of former jeopardy. The conclusions contained in the petition and in the supporting affidavit which were drawn by the attorney for petitioners must be disregarded. An examination of the record fails to disclose that anything was done by the trial court to the prejudice of either petitioner.
We are not informed by the petition as to whether any evidence of any kind was introduced to sustain the plea of
In the absence of any showing of any kind whatsoever, either by inference or otherwise, that any evidence was introduced before the trial court proving or disproving the plea of former jeopardy, this court is without power to issue the writ prayed for.
The petition and the affidavit in support thereof being absolutely insufficient, this court before passing upon said petition and desiring “to obtain information concerning any matter of record pertaining to the case” (rule XXII, sec. 3, Rules for the Supreme Court and District Courts of Appeal), requested the custodian of the record in the superior court to produce the same, and the same has been produced. Said record fails to disclose that any evidence was introduced on behalf of petitioners to either prove or disprove their plea of once in jeopardy. From the date shown in said record, it is apparent that petitioners are relying or attempting to rely upon their preliminary hearing in the municipal court at Long Beach, upon which hearing they were ordered held for hearing in the superior court. The judgment of conviction was rendered in said superior court, which is the judg
The petition is denied.