above-entitled cause, find the defendant guilty of extortion as charged in the 'indictment.”
There was no finding by the jury upon the plea of “ once in jeopardy,” and, so far as appears, there was no evidence introduced or offered in support of the plea; nor is there anything in the record to indicate that the defendant withdrew or waived the plea.
When the defendant was called for judgment, he moved the court for a discharge from custody, and that the judgment be perpetually stayed, which motion was denied by the court and judgment entered.
Aside from the plea of guilty, which raises no issue of fact, there are three pleas to an indictment or information, any one or more of which a defendant may interpose in bar of the prosecution, viz: 2. Not guilty; 3. A former judgment of conviction or acquittal of the offense charged; 4. Once in jeopardy.
Of these pleas the defendant, as before stated, interposed those of “not guilty” and “once in jeopardy.” lie was entitled to have both these pleas passed upon by s a jury before judgment could properly be pronounced in the case against him.
In People v. Kinsey, 51 Cal. 278, the defendants entered a plea of not guilty and of former acquittal. The jury found the defendants guilty of manslaughter, but failed to find upon the issues made by the plea of former acquittal, and, judgment having been rendered against them, this court, on appeal, held that the defendants were entitled to a verdict on each plea, and that until there is such a verdict, there can be no judgment of conviction.
People v. Helbing, 59 Cal. 567, contained like pleas, was disposed of in like manner, and reversed for like cause. People v. Fuqua, 61 Cal. 377, was a similar case, and followed by like effect. To the argument of the attorney general that, in the absence of anything appearing to the contrary, the appellate court must presume, in support of the correctness of the judgment of the court belpw, that the defense was withdrawn or