Oliveros v. State

• Decision Date: 14 May 1904
• Citation: 47 S.E. 627,120 Ga. 237
• Parties: OLIVEROS v. STATE.
• Court: Georgia Supreme Court

47 S.E. 627

120 Ga. 237

OLIVEROS v. STATE.

Supreme Court of Georgia

May 14, 1904

Syllabus by the Court.

1. Where, in the trial of one accused of embezzlement, a certain receipt, signed by the accused, acknowledging the reception of the money, was offered in evidence by the state, and objected to by the accused, and the trial judge, in giving his reasons for admitting it, expressed his opinion as to the effect and weight of such a receipt as evidence, this did not authorize the judge of his own motion, over the protest of the accused, to declare a mistrial and discharge the jury.

2. It was therefore error, when a mistrial had been so granted, and the accused arraigned before a second jury, to overrule a plea of former jeopardy.

3. The Constitution of this state enlarges the general rule, and expressly provides for a second arraignment after the grant of a mistrial.

4. Considering the gravity of the issue, mistrials should not be lightly granted, as for errors of the court in admitting or excluding evidence.

5. But under the exception stated in the Constitution, a mistrial is not limited to cases of physical necessity, as for the sickness of a juror, but may be ordered where it is necessary to cure the effect of occurrences or misconduct tending to destroy the fairness of the trial.

Error from Superior Court, Chatham County; Geo. T. Cann, Judge.

J. B Oliveros was convicted of embezzlement, and brings error. Reversed.

See 45 S.E. 596.

Per Lamar and Candler, JJ., specially concurring.

Twiggs & Oliver, for plaintiff in error.

W. W Osborne, Sol. Gen., for the State.

SIMMONS C.J.

The record discloses that Oliveros was put upon trial under an indictment charging him with embezzlement. He pleaded not guilty. The jury had been impaneled and sworn to try this issue between the state and the accused. Oliveros appears to have been the cashier of a railroad company. In order to prove that he had received the money charged to have been embezzled, a receipt signed by him was tendered in evidence. This receipt acknowledged the reception by him of a certain package of money from an express company. One of the objections urged by the accused to the admission of this receipt was that it was not the highest and best evidence. The trial judge overruled the objections, and said, in announcing his opinion as to the admissibility of the evidence: "A receipt showing the delivery of a package is about as high evidence as you can get. It is about as high evidence as one can get that a man has received anything when he acknowledges it in writing." Counsel for the accused called the attention of the judge to his remarks upon the effect and weight of the receipt, and the judge said: "What I mean to say and what I did say is this: When a man acknowledges the receipt of money, it is about as high evidence as a man can have. I didn't speak of the receipt at all. The acknowledgment of the receipt of money by a party is about as high evidence as you can produce that he received it. All receipts are open to attack. The receipt of a deed is open to attack. It is prima facie evidence of the receipt of money. It is not conclusive." The trial then proceeded for the rest of the day. At night a recess was taken. The following morning the judge, over the protest of the accused, discharged the jury and declared a mistrial because of the remarks set out above, deeming them so erroneous as to vitiate any verdict that might be found against the accused. At the following term of the court the accused was again arraigned and put upon trial before another jury upon the same indictment. He pleaded former jeopardy. The plea was overruled, and he excepted.

Was the trial judge right, under the above-stated facts, in discharging the jury and declaring a mistrial over the protest of the accused? We think not. To justify the grant of a mistrial without the consent of the accused, there must be either a moral or a physical necessity. See Nolan v. State, 55 Ga. 521, 21 Am.Rep. 281. The facts in the present case do not show either a moral or a physical necessity. This being true, the sole question, then, for decision is whether the trial judge may declare a mistrial for an error of law committed by him during the progress of the case in admitting or excluding evidence or some other erroneous ruling. While many exceptions have been made by the courts to the rule that in no case could a mistrial be declared after the jury had been sworn and impaneled and put upon the prisoner, we have sought diligently to ascertain if any court had ever held, as a new exception, that a judge might declare a mistrial because of an error committed by himself; and have been unable to find such a case. The only one cited in the briefs of counsel, and the only one we have been able to find, which deals with such a point, is Hilands v. Com., 111 Pa. 1, 2 A. 70, 56 Am.Rep. 235. That case holds, in substance, that the judge has no authority or power to grant a mistrial for an error committed by himself. The Constitution of this state declares that "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." When, therefore, a person accused of crime has been put upon his trial, and a jury, selected by him and the state, charged with the case, there must be a verdict either for him or against him, unless there is an absolute moral or physical necessity for a mistrial, or he consents to the same. Consequently, if a judge capriciously or erroneously declares a mistrial, and the accused is again put upon trial, he will be placed in jeopardy a second time for the same offense. It may be argued, however, that this same section of the Constitution provides that this rule as to jeopardy shall not obtain in case of mistrial. That is doubtless true if the mistrial arises from absolute moral or physical necessity. This was the rule of a large majority of the courts before these words were put in our organic law, and, of course, they were placed there with knowledge on the part of the makers of the Constitution of what the courts had held to be a legal mistrial. They were also placed there, we presume, to settle what was a disputed question among some of the courts as to whether a person could again be placed upon trial for the same offense, and under the same indictment, after a mistrial for any cause. The Constitution and laws of this state safeguard the lives and liberties of the people, and the courts have established procedure with this view and purpose. They have established, as before remarked, exceptions to the old iron-clad rule that there must be a verdict, as pointed out by the writer in Stocks v. State, 91 Ga. 831, 18 S.E. 847; but they have not made, and we apprehend will never make, the exception that a mistrial may be declared in a criminal case on the judge's own motion, when he thinks that he has committed error. It would not do to hold that, whenever a judge comes to the conclusion that he has committed error in the trial of a criminal case he can declare a mistrial, and put the accused upon trial before another jury. No one could tell where such a ruling would lead. If the judge could do this in one trial, he could do it in the second or third, or even fourth. The law does not intend that one accused of crime shall be harassed in this way.

But it is argued that the judge expressed an opinion in the present case in the presence of the jury, and that under our Civil Code of 1895, § 4334, it became an imperious necessity for him to grant a mistrial. That section reads as follows "It is error for any or either of the judges of the superior courts of this state, in any case, whether civil or criminal, or in equity, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused; and should any judge of said court violate the provisions of this section, such violation shall be held by the Supreme Court to be error, and the decision in such case reversed, and a new trial granted in the court below, with such directions as the said Supreme Court may lawfully give." It is claimed that when the judge said in the present case, in the presence of the jury, that a receipt signed by a person acknowledging the reception of money was the highest evidence, he expressed an opinion as to what had been proved, and, as this section declares that the Supreme Court shall in every such case grant a new trial, and such an error is incurable, the judge was justified in granting a mistrial. In the first place, the Code does not, in this section, deal with mistrials. It provides that when a judge violates its provisions the Supreme Court shall grant a new trial. That is the remedy and the relief provided in this section. We apprehend that the Legislature which passed this act had too much regard for the rights of accused persons to put it in the power of a trial judge on his own motion to grant a mistrial for its violation and again place the accused in jeopardy. But it is said also that it would have been a farce for the judge to have continued the trial after this expression of opinion, and consumed the time of the court and country in going on with a trial, when he knew that he would have to grant a new trial in case of conviction. That is a commercial argument, which amounts to nothing in the administration of law, especially when the life or liberty of a citizen is in danger. A further reply is that the accused, under the law and the Constitution, was entitled to a verdict at the hands of that particular jury. It was not certain, even with this expression of opinion, if it be one, that the...