Hardwick v. State, 28110
| Decision Date | 04 October 1973 |
| Docket Number | No. 28110,28110 |
| Citation | 231 Ga. 181,200 S.E.2d 728 |
| Parties | Bobby HARDWICK v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Where a conviction is set aside upon a petition for writ of habeas corpus and the judgment directs that the prisoner be retried, such retrial does not amount to double jeopardy.
2. Where more than one crime is committed in a single course of criminal conduct, an indictment charging separate crimes in different counts of the indictment is not subject to demurrer or motion to quash.
3. Where a retrial is ordered upon a petition for writ of habeas corpus as set forth in the first headnote above within a specified period of time, but not tried within such time limitation because of the action of the prisoner, the prisoner is not subject to being released without trial.
4. While a prisoner is entitled as a matter of right to one jury trial upon a special plea of insanity, yet a second trial after an adverse verdict to the prisoner on such issue may only be granted in the sound discretion of the trial court.
5. The trial court did not err in overruling the prisoner's challenge to the array of the traverse jury.
6. The arraignment of a defendant properly takes place prior to the impaneling and swearing in of the jury.
Bobby Hardwick was indicted, tried and convicted in 1970 for two counts of armed robbery. An appeal to this court was dismissed for failure of the appellant to timely file a transcript or obtain an extension of time for such filing. See Hardwick v State, 227 Ga. 467, 181 S.E.2d 376. Thereafter a petition for writ of habeas corpus was filed in the U.S. District Court for the Southern District of Georgia, one ground of which alleged that at the time of the original trial of the defendant a petition for removal to the U.S. District Court was pending. The writ was granted on this ground and the conviction set aside with direction that the defendant be retried within six months.
A special plea of insanity was heard by a jury and verdict returned adverse to the defendant. A second petition for removal to the U.S. District Court was filed during the six months granted the state to retry the defendant and again the case was remanded to the state court. The case was again set for trial but not tried when a continuance was granted because of the illness of counsel for the defendant. Between the time the case was originally remanded for retrial upon the petition for writ of habeas corpus and the arraignment of the defendant after the special plea of insanity was heard, the grand jury found a special presentment charging the defendant, in addition to the original two counts of armed robbery, with two counts of aggravated assault. Motion to quash the indictment, a second special plea of insanity, challenge to the array of the traverse jury and plea of former jeopardy were overruled and, thereafter, the defendant was again tried and convicted upon all counts of the indictment and the present appeal filed.
Nicholson & Fleming, George C. Nicholson, B. H. Barton, Augusta, for appellant.
Richard Allen, Dist. Atty., Augusta, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., B. Dean Grindle, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellee.
1. Under decisions exemplified by Jones v. State, 226 Ga. 747(1), 177 S.E.2d 231, and the cases there cited where the prior conviction of the defendant was set aside by the efforts of the defendant to go into jeopardy a second time, the trial court did not err in overruling the plea of former jeopardy, and as was there held the fact that the second trial was based upon a different indictment no way violated any constitutional right of the defendant.
2. Where, as in the present case, separate offenses arising out of the same basic transaction are alleged in separate counts of an indictment, to wit, armed robbery of two victims and aggravated assault of two other victims, it is not error to overrule a motion to quash the indictment which contends that all the alleged crimes arose out of the same transaction. Compare Gully v....
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Smith v. State
...charging instrument, jeopardy would not attach by virtue of trial without arraignment on that charging instrument. Hardwick v. State, 231 Ga. 181(6), 200 S.E.2d 728 (1973) ("Until arraignment or a waiver thereof there can be no jury impaneled and no placing of the defendant in jeopardy."). ......
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Scudiere v. State
...of arraignment and stood mute, whereupon a not guilty plea was entered for him. There was no error in this procedure. Hardwick v. State, 231 Ga. 181, 200 S.E.2d 728. Contrary to Scudiere's contention that he is entitled to be arraigned in the presence of the jury, the jury cannot be impanel......
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Gibbs v. State
...special jury had returned an adverse verdict on the first special plea of insanity. The Flanagan case was followed in Hardwick v. State, 231 Ga. 181, 183, 200 S.E.2d 728 under similar facts. The rulings in these cases have no application to the facts in the present Code Ann. § 88-506.7 (Ga.......
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Currelley v. State
...of insanity is a matter within the sound discretion of the trial court, and we find no abuse of discretion here. Hardwick v. State, 231 Ga. 181, 183(4), 200 S.E.2d 728 (1973). 3. It was not error to allow the state's nonexpert witness, a social worker at Central State Hospital who interview......