We had an animal cruelty case involving over 200 animals. Prior to 1st trial we reduced charge to cruelty to 1 dog. After jury said NG we re-filed using 3 more animals.

Now defense wants a special instruction to the jury about double jeopardy. (He really means collateral estoppel but he isn't too bright.)

Defense filed a "Special Plea of Double Jeopardy" and now the judge wants to know when defense is entitled to a jury instruction on the issue.

Any thoughts?

Thanks

The Defendant's plea (autrefois acquit)is not the proper, or even an available, method to prevent a re-trial. Since he was not convicted in (punished as a result of) the first case, there should be no occasion for the jury to determine any fact. See Kelson, No. 09-04-146-CR (June 29, 2005).