Rittenberry v. State

• Decision Date: 17 May 1923
• Docket Number: (No. 14394.)
• Citation: Rittenberry v. State, 30 Ga.App. 289, 117 S.E. 765 (Ga. App. 1923)
• Parties: RITTENBERRY v. STATE.
• Court: Georgia Court of Appeals

30 Ga.App. 289

117 S.E. 765

RITTENBERRY

v.STATE.

(No. 14394.)

Court of Appeals of Georgia, Division No. 1.

May 17, 1923.

(Syllabus by the Court.)

Bloodworth, J., dissenting.

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

R. B. Rittenberry was convicted of an offense, and he brings error.Affirmed.

Thos. A. Jacobs, Jr., and Harris, Harris & Witman, all of Macon, for plaintiff in error.

Chas. H. Garrett, Sol.Gen., of Macon, for the State.

BROYLES, C. J.The defendant was being tried for a misdemeanor.The case was submitted to the jury about 5:30 o'clock in the afternoon, and about an hour afterwards counsel in the case agreed that, should the jury make a verdict that night, a sealed verdict could he returned and the jury be allowed to disperse, the verdict to be received in open court the next morning.This was the only agreement entered into by counsel.At about 11 o'clock that night the jury had not reached a verdict, and at that time the trial judge, who had gone to a hotel, was informed that the jury had not agreed upon a verdict and that the wife, of one of the jurors was very ill.Upon receiving this information the judge from his hotel instructed the sheriff to allow the jury to disperse and go home for the night This order was carried out and the Jury dispersed.Upon the following morning, when the court reconvened, the judge, the jury, the defendant, and his counsel were all present, and the judge, ascertaining that a verdict had not been arrived at, on his own motion declared a mistrial of the case.At the time when the jury were allowed to disperse for the night the defendant was involuntarily confined in the jail, and neither he nor his counsel had any knowledge of the dispersal of the jury until the following morning.The judge ordered the dispersal without making any effort to get into communication with the defendant or his counsel.When the jury were allowed to disperse for the night, they stood 10 for acquittal and 2 for conviction.When the court reconvened upon the following morning, no objection was made by the defendant or his counsel to the order of the judge declaring a mistrial.

Several days afterwards the defendant was again placed upon trial for the same offense, and he filed a plea of former jeopardy, setting forth the facts as above staled.The solicitor general orally moved to dismiss the plea, on the ground that it was insufficient in law.After argument the court dismissed the plea and ordered the defendant to trial, which proceeded to a conviction and sentence.The defendant in his bill of exceptions assigns error upon the order dismissing his plea of former jeopardy and upon the final verdict and sentence in the case.

1.A mistrial furnishes no basis for a plea of former jeopardy upon a subsequent trial of the case, unless the mistrial was declared without legal cause.Williford v. State, 23 Ga. 1;Nolan v. State, 55 Ga. 521, 21 Am. Rep. 281;Lovett v. State,...