Paul v. Benzie Circuit Judge , 163 Mich. 543 ( 1910 )

Brooke, J.

This is an application for a writ of mandamus commanding respondent to vacate an order made by him in a certain criminal case then pending in the circuit court for the county of Benzie; said case being entitled the People v. Chandler Rowe. It appears that Rowe was on trial, charged with the offense of unlawfully selling intoxicating liquor in Benzie county; it being claimed by the prosecution that such sale was prohibited by virtue of an election held, and a resolution passed by the board of supervisors, in the spring of 1909. After the prosecution had offered in evidence the record of the proceedings of the board of supervisors touching the adoption of prohibition in said county, counsel for Rowe moved that he be discharged. This motion was granted, and respondent was discharged.

It is the contention of relator that by a writ of mandamus the respondent should be ordered to set aside and vacate his order of discharge, and proceed with the trial. We are of the opinion that this cannot be done. Rowe was upon trial under a plea of “not guilty.” After a jury was sworn and the testimony of the people introduced, his discharge was ordered by the court. He cannot again be placed in jeopardy.

The writ is denied.

Bird, O. J., and Ostrander, Blair, and Stone, JJ., concurred.