Hobbs v. State, 27321

• Decision Date: 05 October 1972
• Docket Number: No. 27321,27321
• Citation: 229 Ga. 556,192 S.E.2d 903
• Parties: Willie HOBBS v. The STATE.
• Court: Georgia Supreme Court

Page 903

192 S.E.2d 903

229 Ga. 556

Willie HOBBS v. The STATE.

No. 27321.

Supreme Court of Georgia.

Oct. 5, 1972.

Rehearing Denied Oct. 23, 1972.

Thomas M. Jackson, Macon, John H. Ruffin, Jr., Augusta, for appellant.

Ben Miller, Jr., Dist. Atty., Thomaston, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., Daniel I. MacIntyre, Atlanta, for appellee. Syllabus Opinion by the Court

HAWES, Justice.

The appellant was convicted of rape and sentenced to life imprisonment. He appealed, enumerating as error the overruling by the trial court of his motion challenging the constitutionality of Code, § 26-1302 and the overruling of his motion for a new trial.

1. With respect to the first ground of enumerated error, appellant contends that the imposition of a sentence of death under the circumstances of this case is a violation of his constitutional rights. However, as stated above, appellant was not sentenced to death and therefore has no standing to challenge in this appeal the statute imposing the death penalty. A party who is not within the class of those persons whose rights are adversely affected by a statute or who has suffered no harm or stands to suffer no harm by the mere presence of the statute upon the books, and a person against whom the statute in question has not been invoked has no standing to come into court and ask that the statute be declared invalid. McIntyre v. State, 190 Ga. 872(5c), 11 S.E.2d 5; Kryder v. State, 212 Ga. 272, 274, 91 S.E.2d 612; Frances Wood Wilson Foundation, Inc. v. Bell, 223 Ga. 588(1), 157 S.E.2d 287 and cits. It follows that the first ground of enumerated error presents nothing for decision by this court.

2. Code § 27-2511 provides in part that, 'If any person who has been convicted of an offense and sentenced to confinement and labor in the penitentiary shall afterwards commit a crime punishable by confinement and labor in the penitentiary, he shall be sentenced to undergo the longest period of time and labor prescribed for the punishment of the offense of which he stands convicted.' It has been held that where the State intends to rely upon this provision of the law it is essential that the fact of prior convictions be alleged in the indictment. Tribble v. State, 168 Ga. 699(3), 148 S.E. 593; Kryder v. State, supra. Appellant was previously tried under an indictment which charged him with the commission of the crime of rape, but which did not allege the commission by him of any previous crimes so as to bring the prosecution within the foregoing Code section. That trial resulted in a mistrial on account of the inability of the jury to agree on a verdict. Thereafter the State obtained a new indictment which alleged the previous conviction of the accused of a felony so as to bring the case within that provision of the law. Appellant moved to quash the second indictment and to dismiss it. Those motions were overruled, and those rulings were excepted to in two grounds of appellant's motion for a new trial. 'In the case of Irwin v. State, 117 Ga. 706, 45 S.E. 48 it is held that, 'in a criminal proceeding, the pendency of a former indictment for the same offense is no ground for a plea in abatement or in bar, although the accused may have been arraigned thereon and have filed a plea.' It is also ruled in that case that, 'where several indictments for the same offense are pending against the same person, it is immaterial upon which he is first tried.' The rulings quoted virtually control the case at bar.' Pride v. State, 125 Ga. 750, 751, 54 S.E. 688.

Appellant contends that, notwithstanding the foregoing authorities, his re-trial under the new indictment after the jury, in the first trial under the original indictment, had been unable to agree on a verdict and a mistrial had been declared amounts to penalizing him in violation of the principles enunciated by the Supreme Court of the United States in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 and similar cases, since under the new indictment and the law applicable thereto it was mandatory that the maximum sentence for the offense with which he was charged be imposed upon him, a mandate which was not imposed on the jury in the first trial. North Carolina v. Pearce and other holdings of Federal and State courts to a like effect arose out of instances where an accused was tried on a charge which embodied a lesser included offense of which the accused was convicted. In each of such cases the accused sought and was granted a new trial, and upon re-trial was convicted of the offense charged in the indictment and had imposed upon him a harsher sentence than was imposed upon him on the first trial. The decision in each of those cases was based upon the theory that the conviction of the accused on the first trial of the lesser included offense was tantamount to his acquittal of the greater charge and that under the principles forbidding the imposition of double jeopardy the accused could not again be placed on trial for the greater offense. However, the authorities are clear that where the grant of a mistrial results from the inability of the jury to agree on a verdict which makes the discharge of the jury necessary and the completion of the trial impossible a second trial for the same offense or for an offense growing out of the same acts is not barred and does not violate the guaranty against double jeopardy. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974; Dortch v. United States (C.A. 6 Cir.) 203 F.2d 709, cert. den. 346 U.S. 814, 74 S.Ct. 25, 98 L.Ed. 342; Gilmore v. United States (C.A. 5 Cir.) 264 F.2d 44, cert. den. 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982. Following these authorities, we hold that there is no merit in the contention of the appellant that the trial court erred in overruling his motion to quash the second indictment on the ground that the procurement of the same by the State violated his constitutional rights after a mistrial had...