The San Francisco call., 1897-12-14
Ris Attorney Failed to Pro-
test at the Proper
Time.
United States District Judge de
Haven Reverses the State
Supreme Court.
Justice Beatty's Dissenting Opinion
Declared to Be the Sound Law
of the Case.

United States District Judge de Haven
rendered an op Mon yesterday morning
In the case of the People against &. r.
Bennett, practically aft irming the dissent
ing opinion of Justice Beatty in the State
Supreme Court.
Bennett was secretary of the Society for
the Prevention OF Vice, and while acting
as such betrayed a too confiding Young
giTl named Gray. The matter became
pkolic, and the girls father took a couple
yAshots at Bennett with revolver in a
railroad car but being a rniserably poor
marksman missed, although he was not
N ore than ten feet away from Bennett
Gray was arrested, but a sympathetic
/ jury ignored the facts and the evidence
and acquitted him. The next time Gray
and Bennett met, Bennett got the drop
on Gray and fired a shot with an aim
equally as tai. Bennett was tried for an
assault with deadly weapon with intent
TO commit murder. The Jury acquitted
him OF that charge, but convicted nim OF
an assault with deadly weapon. he OBJ
tanned new trial, and without q new in
formation or Indictment and without even
beng arraisned be was placed on his trial
Tor an assault with intent to commit muir
der and was found guilty as charged.
The Superior Court thereupon granted
him new trial on the plea of D. NJ.
Conner, his counsel that he had been
twice In jeopardy for the higher offense.
This ruling was reversed by The Supre m g
Court of the State and the case was re-
manded to the Superior Court, whereupon
Bennett was sentenced TO one years i'm
prisOnment in the peHitentisry for the
crime of an assault with intent to com nit
murder.
l. appears from the decision of Judge
de Haven that Benefits counsel made q
fatal mistake when be failed to put in in
bar OF his second trial for the ereIter
Offense the special plea of former aCquit-
tai, and 1t was because of his failure . do
SO that the Supreme Court OF the State
held that he was properly convicted OF the
higher offense.
Judge de Haven said that there can B..
no doubt that the verdict Ot the Jury
rendered upon the first trial finding Ben
nett Guilty Of the lesser often was in le-
EaI effect an acqulttal of the higher often Sc
OF which The defendant stands convicted.
The right OF person after acquittal by
Jury o be exempt frOG; the jeopardy of
being again placed on trial in the same
court and upon tue same indictment for
1.e Identical offense of which he has been
- quilted IS certainly one OF the funda-
4 -ataI rights OF the citizen, and unQues-
tOnably the guarantee OF due process Of
law found in the fourteenth amendment
cure the citizen this right.
II his acqittal had taken place in some
other court or upon another Indictment
n the same court it would have been in
cum bent upon the petitioner to have
specially pleaded such defense.
: The prisoner Is not entitled to be set al
liberty because he has not been acquitted
of either OF the minor offenses charged in
the inform alton, and this court has nc
authority to remand the petitioner TO the
custody of the State court with lnstruc-
tons 10 proceed to Try him for such minor
offenses. Such direction, however, could
be given by the Supreme Court OF the
United States upon writ OF error.
1t may be that the petitioner would not be
entitled 10 8 writ OF error, for the reason thai
he did not distinctly claim before the ouprem G
Court of this State that his conviction de-
prived him of rights guaranteed by the Con
siitution of the United States, but, il so, thai
fact would not enlarge the remedy or give to
him any greater rights than he would other
wise be entitled to obtain under a writ OF ha-
beas corpus
Judge de Haven refused to grant the
application of the writ.