Harwell v. State, 27643
| Decision Date | 13 April 1973 |
| Docket Number | No. 27643,27643 |
| Citation | 230 Ga. 480,197 S.E.2d 708 |
| Parties | Terry HARWELL v. The STATE. |
| Court | Georgia Supreme Court |
Hoyt L. Bradford, Conyers, for appellant.
John T. Strauss, Dist. Atty., Covington, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Frank M. Palmour, Asst. Attys. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
This is an appeal from a conviction for murder and a life sentence.
The appellant's first trial took place on May 16 and 17, 1972. The jury deliberated for forty-eight hours and was unable to reach a verdict. The trial judge declared a mistrial.
A second trial took place on May 29 and 30, 1972, resulting in the conviction and sentence. The appellant filed a motion for a new trial which was overruled by the trial court, and the case is now here for review.
1. At the beginning of the second trial the appellant filed a motion, applicable to the first trial, for a judgment in his favor notwithstanding the mistrial. This motion was based, in part, upon the State's failure to prove venue and upon the failure of the trial court to charge the jury that proof of venue was a material allegation of the indictment. The state did prove venue, and where there is sufficient evidence of venue, if the trial court charges the jury generally on the law of reasonable doubt, it is not necessary for the Court to charge the jury that proof of venue is a material allegation of the indictment. See Haden v. State, 176 Ga. 304 (168 S.E. 272) (1933). The overruling of the motion was not erroneous on these grounds.
2. Other reasons urged why the overruling of the motion was erroneous are that the mistrial in the first trial was declared without the consent of the defendant, and that the overruling of the motion amounted to the overruling of the Appellant's plea of former jeopardy.
The declaration of a mistrial in a criminal case, where the jury after deliberating a reasonable time is unable to agree upon a verdict, does not amount to a verdict of acquittal. See Lovett v. State, 80 Ga. 255, 4 S.E. 912 (1877), and Nolan v. State, 55 Ga. 521 (1875).
The double jeopardy provision of the Georgia Constitution, Const. Art. 1, § 1, par. 8 reads as follows: 'No person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his, or her own motion for a new trial after conviction, or in case of mistrial.'
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