Can a defendant be discharged in a habeas corpus proceeding upon the ground that he was placed in jeopardy and could not be tried for the same offence?

thereafter discharged in a habeas corpus proceeding upon the ground that he had been placed in jeopardy and could not be again tried for the same offense. In that case, as in this, the argument was made that the defendant had not been placed in jeopardy as there was no valid judgment of acquittal or conviction. This court rejected the argument and decided that as the defendant had been placed in jeopardy the unlawful termination of the trial did not prevent him from availing himself of his constitutional right. Cf. People v. Goldfarb, supra; 1 Bishop on Criminal Law (9th Ed.) p. 749, 1013.

If a court in which a prisoner is tried is entirely without jurisdiction and the trial is only one in form and can have no legal effect, such trial does not place the prisoner [269 N.Y. 430]in jeopardy and that defense is not available to him upon a retrial. People v. Connor, 142 N.Y. 130, 36 N.E. 807.