Travis & Whiting for appellant.
Samuel Bernstein, District Attorney, and Chernin & Gold for respondent.
upon this trial was the same assault as one of those upon the previous trial and, therefore, it was double jeopardy. If there were more than two assaults, the answer might have been different. As this is a matter of fact to be decided by the jury, I do not wish to usurp their duties and hold that the case was, as a matter of law, the same prosecution as the disorderly case, and I am, therefore, ordering a new trial of the case and leaving that question to be determined upon the new trial also. Upon the new trial, the question of double jeopardy should be submitted in a plain, understandable question for the jury to understand. The jury did not understand the question submitted here, as it took pages and pages of instructions and it is doubtful if they ever understood what they were doing. At least, it overemphasized an unimportant question and drew the jury's attention from the main questions of guilt or innocence or of double jeopardy. The judgment of conviction is reversed and the case remitted to the trial court for a new trial. Submit order accordingly.