In re Swanson

WHITE, J.,

Dissenting. — I dissent. An examination of the superior court file containing the proceedings had in connection with the trial therein of petitioners, and which examination is now authorized by section 3 of article XXII, paragraph 1 of the Rules for the Supreme Court and District Courts of Appeal, clearly reveals that in said superior court action, when these petitioners were arraigned therein as defendants for plea, they specifically pleaded that they and each of them had been once in jeopardy for the offense charged against them in the Municipal Court of the City of Long Beach on March 4, 1941. This plea was entered in the minutes of the court. The cause proceeded to trial, and the record discloses that at the conclusion of the trial, which was had before a judge sitting without a jury, the court found the defendants guilty of the offense of conspiracy to commit theft, in violation of section 484 of the Penal Code, but made no finding whatsoever upon the plea of former jeopardy. By the provisions of subdivision 2 of section 1155 of the Penal Code it is specifically provided that “If the plea is a former conviction or acquittal of the same offense, the court must give judgment of acquittal or conviction, as the facts prove or fail to prove the former conviction or acquittal.”

The judgment rendered in the superior court action not being in accord with the requirements of law, as appears from the petition on file before us, together with the files of the superior court action, I am of the opinion that the petition for a writ of habeas corpus should be granted, to the end that due inquiry may be made as to the legality of petitioners ’ detention under the judgment rendered in the superior court action.