Lovett v. State

• Citation: 80 Ga. 255,4 S.E. 912
• Parties: Lovett v. State.
• Decision Date: 25 January 1888
• Court: Georgia Supreme Court

4 S.E. 912

(80 Ga. 255)

Lovett

v.State.

Supreme Court of Georgia

January 25, 1888

1. Criminal Law—Verdict—Inability to Agree—Discharge of Jury.

Though the jury in a criminal case may not have deliberated for more than an hour and a half, the court, if fairly satisfied that they cannot and will not agree upon a verdict, may discharge them, and declare a mistrial.

2. Same—Plea of Former Jeopardy—Practice.

A plea of former jeopardy is not ready for final adjudication until traversed or demurred to. If it misrepresents or does not fully represent the action of the court on the former trial, the whole of such action is nevertheless open for consideration in ruling upon the plea, but, if not already recorded, it should first be entered of record nunc pro tune. The court should not overrule a plea because of matter of fact which is outside both of the plea and the record, although such extrinsic matter may be within the knowledge and recollection of the judge.

3. Evidence—Declarations in Own Behalf.

The meat alleged to be stolen from the house being in a sack, and the prisoner having in the same room a sack of his own with meat in it, what he said to a neighbor soon after arriving at home, tending to show that he had taken up and brought away the wrong sack by mistake, was admissible evidence in his behalf. Walker. v. State, 28 Ga. 258; McElmen v. State, 30 Ga. 872; Hall v. State, 34 Ga. 208. 4. Same.

The error of excluding such evidence is not repaired by submitting to the jury a written recital of it after the witness had left the court, and after the argument had progressed to an advanced stage. (Syllabus by the Court.)

Error from city court of Carollton; Adamson, Judge.

Cobb & Juhan, for plaintiff in error. C. P. Cordon, Sol. City Court, and W. F. Brown, for the State.

Bleckley, C.J. 1. It is not disputed that, where a mistrial has been properly declared, the prisoner may be again tried. Nolan v. State, 55 Ga. 521; Const. 1877; Code, § 5000. But the plea alleges that, after the jury had deliberated only about one hour and a half, the court, without the consent, and against the protest, of the prisoner, discharged them. The point of objection is that the court did not wait long enough before declaring a mistrial. The law prescribes no definite period of time, and, unless the contrary appears, it should be taken for granted that the court acted upon proper evidence of improbability that the jury could or would agree. Had the plea been demurred to, there would have been no error in overruling it, or pronouncing it insufficient, provided there was of record a proper order declaring a mistrial. For any abuse of discretion in declaring a mistrial, a writ of error, if sued out in proper time, would doubtless lie to this court; and in addition to that, were the abuse willful and oppressive, the judge would be answerable for it to the impeaching power. On the whole, there is little danger that the practice of prematurely declaring mistrials will become prevalent.

2. From the record before us, we are unable to discover that the plea was either traversed or demurred to. The court overruled it, partly upon matters which he recites as additional facts to those contained in the plea. If these facts were material, they should first have been entered of record, nunc pro tunc, unless they were already on record. That was the course taken in Holman v. State, ante, 8, (last term,) and we consider it the proper practice. How the court can look beyond both the plea and the record for facts on which to dispose of the plea is not plain to us, and as at present advised we think it cannot be done.

3. The ultimate...