in the opinion of the court, guilty of a more serious offense (People v. Ny Sam Chung, 94 Cal. 304, 28 Am. St. Rep. 129, 29 Pac. 642).

Where the court is prohibited from pronouncing judgment upon the defendant because the indictment is invalid, jeopardy does not attach. (People v. Terrill, 133 Cal. 120, 65 Pac. 303.)

To hold a person guilty of the crime of offering a bribe, and by the same act guilty of the crime of being an accomplice to the crime of receiving a bribe, would not be allowable. (People v. Bunkers, 2

Cal. App. 197, 84 Pac. 364, 370.)

A dismissal of a charge on motion of the district attorney is not a bar to another prosecution. (People v. Kerrick, 144 Cal. 46, 77 Pac. 711.)

When a defendant is acquitted because of a variance between the proof and the indictment, and the variance is such that a conviction is legally impossible, he has not been in jeopardy. (People v. McNealy, 17 Cal. 332; People v. Oreileus, 79 Cal. 178, 21 Pac. 724.)

A judgment rendered upon a plea of which the court has no jurisdiction does not place the defendant in jeopardy so far as that plea is concerned. (People v. Woods, 84 Cal. 441, 23 Pac. 1119; People v. Hamberg, 84 Cal. 468, 24 Pac. 298.)

Subdivision 6 of section 1238 of the Penal Code, allowing the people to appeal from an order of the court directing the jury to find for the defendant, is void, since the defendant has been in jeopardy. (People v. Horn, 70 Cal. 17, 11 Pac. 470.)

The fact that the defendant has been held to answer by a justice of the peace and discharged does not prevent him from again being held to answer. (Ex parte Cahill, 52 Cal. 463.)

If a demurrer is sustained to an information, without leave to amend, it is a bar to another prosecution. (People v. Jordan, 63 Cal. 219.)

Where an information is dismissed because it charges the commission of an offense subsequent to the date of its filing, a plea of once in jeopardy will not prevail. (People v. Larson, 68 Cal. 18, 8 Pac. 517.)

A discharge upon preliminary examination does not place the defendant in jeopardy. (Ex parte Fenton, 77 Cal. 183, 19 Pac. 267.) Discharge of jury.—If the jury is discharged without the consent of the defendant, except in case of unavoidable accident or necessity, the defendant cannot be again prosecuted. (People v. Cage, 48 Cal. 323, 17 Am. Rep. 436.)

Inability of the jury to agree after a reasonable time for deliberation is an unavoidable necessity. (People v. Cage, 48 Cal. 323, 17 Am. Rep. 436; People v. Smalling, 94 Cal. 112, 29 Pac. 421; People v. James, 97 Cal. 400, 32 Pac. 317; People v. Disperati, 11 Cal. App. 469, 105 Pac. 617.)

The fact of such necessity cannot be impeached by extrinsic evidence, and such discharge may be made in the absence of the defendant, if his presence is waived by his counsel. (People v. Smalling, 94 Cal. 112, 29 Pac. 421.)

Even if the court instructed the jury to acquit, a plea of once in jeopardy will not prevail if the jury is discharged for failure to agree. (People v. James, 97 Cal. 400, 32 Pac. 317.)

The court cannot discharge the jury merely upon a report of the sheriff that the jury cannot agree. (People v. Cage, 48 Cal. 323, 17 Am. Rep. 436.)

Where the jury is discharged for failure to agree, it is not necessary that the record should show that it satisfactorily appeared to the judge that there was no reasonable probability that the jury could agree. (People v. Greene, 100 Cal. 140, 34 Pac. 630.)

Where the defendant flees during the trial and the jury is discharged, a plea of once in jeopardy has no merit. (People v. Higgins, 59 Cal. 357.)

Where the jury is discharged with the consent of the defendant, a plea of once in jeopardy will not prevail. (People v. Curtis, 76 Cal. 57, 17 Pac. 941.)

The same is true if the jury is discharged on account of the sickness of one of the jurors. (People v. Ross, 85 Cal. 383, 24 Pac. 789.) But if a defendant is indicted for manslaughter, the court cannot lawfully discharge the jury because it is of the opinion that he is guilty of murder. (People v. Hunckeler, 48 Cal. 331.)

Nor can the jury be lawfully discharged because it has found a verdict convicting the defendant of a crime not included in the charge. (People v. Arnett, 129 Cal. 306, 61 Pac. 930.)

Different offenses.-Where the legislature has forbidden the sale of opium, unless a record of the sale is kept, and a city ordinance forbids the sale without a prescription of a physician, a prosecution under each of these provisions is no violation of this provision. (Ex parte Hong Shen, 98 Cal. 681, 33 Pac. 799.)

A prosecution for fraudulently procuring a note of one of the joint makers is not a bar to a prosecution for fraudulently procuring the joint note of the two makers. (People v. Cummings, 123 Cal. 269, 55 Pac. 898.)

An acquittal upon a charge of libel in the publication of a charge in a newspaper is a bar to a prosecution for the publication of another charge in the same issue and against the same individual, although the charges are not the same. (People v. Stephens, 79 Cal. 428, 4 L. R. A. 845, 21 Pac. 856.)

A charge of altering the brands of cattle is not included in a charge of grand larceny of the same cattle, in which evidence was given of the same alteration of brands. (People v. Kerrick, 144 Cal. 46, 77 Pac. 711.)

Lesser offense.—A conviction of a lesser offense than that charged is an acquittal of the higher. (People v. Apgar, 35 Cal. 389; People v. Ny Sam Chung, 94 Cal. 304, 28 Am. St. Rep. 129, 29 Pac. 642; People v. Gordon, 99 Cal. 227, 33 Pac. 901.)

Where a defendant is charged with assault with a deadly weapon, and is convicted of battery, and the judgment is reversed, a plea of once in jeopardy will not lie, as assault does not include battery. (People v. Helbing, 61 Cal. 620.)

A defendant tried for murder, and convicted of murder in the second degree, who has the judgment vacated and a new trial granted, may be subsequently convicted of murder in the first degree. (People v. Keefer, 65 Cal. 232, 3 Pac. 818.)

A conviction of an assault, under an information charging an assault with intent to murder, is a bar to a prosecution for mayhem committed during the assault. (People v. Defoor, 100 Cal. 150, 34 Pac. 642.)

A verdict of manslaughter is the equivalent of a verdict of not guilty of murder, and the defendant, after such verdict, cannot be again tried upon the charge of murder. (People v. Muhlner, 115 Cal. 303, 47 Pac. 128.)

A conviction for petit larceny committed in connection with a burglary is not a bar to a prosecution for burglary. (People v. Devlin, 143 Cal. 128, 76 Pac. 900.)

New trials and appeals.-Where a new trial is ordered for insufficiency of the evidence, a plea of once in jeopardy has no merit. (People v. Hardisson, 61 Cal. 378.)

Where a judgment of conviction is reversed because of a defective information, and the action is dismissed and a new information filed for the same offense, the defendant cannot plead once in jeopardy. (People v. Schmidt, 64 Cal. 260, 30 Pac. 814; People v. Eppinger, 109 Cal. 294, 41 Pac. 1037; People v. Clark, 67 Cal. 99, 7 Pac. 178; People v. Mooney, 132 Cal. 13, 63 Pac. 1070.)

The same is true where the judgment is reversed because the verdict fails to find the degree of the crime. (People v. Travers, 73 Cal. 580, 15 Pac. 293; People v. Lee Yune Chong, 94 Cal. 379, 29 Pac. 776.) Also where the judgment is reversed for failure to file the information within the time prescribed by the statute. (People v. Wickham, 116 Cal. 384, 48 Pac. 329.)

Also where the judgment is reversed for failure to find upon a plea of once in jeopardy. (People v. Tucker, 117 Cal. 229, 49 Pac. 134.) Where the defendant has not asked for a new trial, the supreme court in reversing the judgment may nevertheless grant it. (People v. Travers, 77 Cal. 176, 19 Pac. 268; People v. Lee Yune Chong, 94 Cal. 379, 29 Pac. 776.)

New trial as former jeopardy. See 8 R. C. L., §§ 152-156, pp. 160-164.

Practice. The question of jeopardy can only arise after an issue has been made of once in jeopardy. (People v. Lee Yune Chong, 94 Cal. 379, 29 Pac. 776.)

The defendant is entitled to a special verdict upon a plea of once in jeopardy. (People v. Tucker, 115 Cal. 337, 47 Pac. 111.)

Where the jury on the first trial found for the people on the plea of once in jeopardy, but failed to agree as to the plea of not guilty, the former plea need not be again submitted to the jury on a second trial. (People v. Smith, 121 Cal. 355, 53 Pac. 802.)

Former acquittal or conviction as defense. See note, 11 Am. St.
Rep. 228.

Identity of offenses in plea of former jeopardy. See note, 92
Am. St. Rep. 89.

Effect of granting new trial after conviction. See note, 14 Am.
Rep. 751.

Granting new trial after conviction for manslaughter does not permit subsequent conviction for a greater crime. See note, 12 Am. Rep. 473.

Granting of new trial, whether may subject defendant to conviction for higher offense. See note, 4 Am. St. Rep. 117.

Waiver or estoppel to plead former jeopardy. See note, 135 Am. St. Rep. 70.

Former jeopardy in general. See 8 R. C. L., §§ 114-156, pp. 134

164.

Examination before magistrate as former jeopardy. See note, 18 Ann. Cas. 993.

Former jeopardy notwithstanding order of mistrial. See notes, 1 Ann. Cas. 118; 10 Ann. Cas. 1086; Ann. Cas. 1914B, 774. Conviction for lesser offense on trial for greater as bar to prosecution for greater on new trial. See notes, 4 Ann. Cas. 778; 16 Ann. Cas. 1206; Ann. Cas. 1912C, 668.

WITNESS AGAINST SELF.—A proceeding to remove a public officer for misconduct in office, no matter in what form the statutes may elothe it, is in its nature a criminal case. (Thurston v. Clark, 107 Cal. 285, 40 Pac. 435.)

Sections 1458 to 1461 of the Code of Civil Procedure are not penal in their nature. (Levy v. Superior Court, 105 Cal. 600, 29 L. R. A. 811, 38 Pac. 965.)

Where the examination of the defendant is confined entirely to the instrument which he is charged with forging, he cannot be cross-examined in reference to the forgery of another instrument. (People v. Baird, 104 Cal. 462, 38 Pac. 310.)

Where a defendant testifies that he drew the pistol merely to scare the deceased and had had no quarrel with him on that day, it is proper on cross-examination to ask him whether or not he had a quarrel with the deceased a few moments before the shooting, and as to what kind of a pistol he had, and why he cocked it. (People v. Brown, 76 Cal. 573, 18 Pac. 678.)

Where a defendant in his cross-examination voluntarily makes a statement concerning matters not embraced in his examination in chief, he may be cross-examined for the purpose of making such statements more clear. (People v. Sutton, 73 Cal. 243, 15 Pac. 86.)

The fact that the defendant has been compelled to testify concerning the offense is merely a defense to the indictment, and does not affect the jurisdiction of the court. (Rebstock v. Superior Court, 146 Cal. 308, 80 Pac. 65.)

It is sufficient, to bring a person within the immunity of this provision, that there is a law creating the offense under which the witness may be prosecuted, and which does not secure him against use, in a criminal prosecution, of the evidence that he may give; and in such case he cannot be compelled to answer in any collateral proceeding as to acts constituting such offense. (Ex parte Clarke, 103 Cal. 352, 37 Pac. 230.)

Where the statute gives the witness complete immunity from prosecution for the offense with reference to which his testimony is given,

(Ex parte Cohen, 104 Cal. 524, 43 Am.

he cannot refuse to answer.
St. Rep. 127, 26 L. R. A. 423, 38 Pac. 364.)

A law can absolutely secure a party against use in a criminal prosecution of the evidence he may give, only by a provision that, if he submits to the examination and answers the questions, he shall be exempt from any criminal prosecution for the offense to which the inquiry relates. (Ex parte Clarke, 103 Cal. 352, 37 Pac. 230.)

The mere fact that an answer might disgrace the witness is not ground for refusal to answer; and where an act provides that the testimony shall not be used against him in any criminal prosecution, he cannot refuse to answer under this provision. (Ex parte Rowe, 7 Cal. 184.)

It is for the court and not for the witness to determine whether or not the answer will incriminate the witness. (In re Rogers, 129 Cal. 468, 62 Pac. 47.)

A defendant in a criminal prosecution, who has become a witness in his own behalf, cannot be cross-examined as to any facts or matters not testified to by him on his examination in chief. (People v. O'Brien, 66 Cal. 602, 6 Pac. 695.)

When a defendant offers himself as a witness he is subject to the same rules of cross-examination as any other witness. (People v. Maughs, 8 Cal. App. 107, 96 Pac. 407.)

Where a person, suspected of being concerned in a crime, is taken before the grand jury, before any formal charge is made against him, and is sworn and examined concerning his actions before and at the time of the crime, without being informed of his constitutional right to decline to be a witness against himself, nor warned that his state. ments might be used against him, the testimony so given by him cannot be used against him. (People v. O'Bryan, 165 Cal. 55, 130 Pac. 1042.)

A person is not compelled to be a witness against himself in violation of this section, when doctors are allowed to give their opinions of his sanity in a criminal trial, which opinions are based upon their examinations, to which he voluntarily submitted. (People v. Bundy, 168 Cal. 777, 145 Pac. 537.)

Section 367c of the Penal Code, which requires the driver of a motor vehicle who has injured a person or vehicle to give to the injured person the number of his vehicle, his name and address, and the name of the owner of such vehicle, does not offend this provision. (People v. Diller, 24 Cal. App. 799, 142 Pac. 797.)

Privilege of witness as to incriminating testimony. See notes, 21
Am. Dec. 55; 75 Am. St. Rep. 318.

Waiver of privilege of witness by voluntarily testifying in own
behalf. See notes, 19 Am. Rep. 348; 2 Ann. Cas. 247; 11 Ann.
Cas. 822.

Compelling accused to perform acts, exhibit himself, or to submit to physical examination. See note, 94 Am. St. Rep. 336. Witness or court as proper one to decide whether answer to question asked will tend to degrade or incriminate witness. See notes, 5 Ann. Cas. 41; 11 Ann. Cas. 1079; 12 Ann. Cas. 661. Immunity from self-incrimination. See 8 R. C. L., §§ 32-35, pp. 77-81.