Opinion
July 2, 1936.
In a habeas corpus proceeding, order sustaining the writ and discharging relator from custody reversed upon the law, writ dismissed and the relator remanded to the custody of the warden of the City Prison, Brooklyn. The declaration of mistrial took place just after petitioner had rested and just before his codefendant was about to rest. This indicates that the court had ruled that the People had proved a case against both defendants. They were charged with a serious crime. The testimony involved both, and testimony against one affected the other. Believing a situation involving one of the defendants required it so to do, the court declared a mistrial. This was deemed to include both defendants. It was proper to direct a mistrial as to both in the interests of justice. To continue the trial against the remaining defendant would have been unfair to him. That petitioner must have thought so is indicated by his silence when the mistrial was granted. There is no double jeopardy. Lazansky, P.J., Young, Carswell, Johnston and Taylor, JJ., concur.