State ex rel. Alcala v. Grayson
| Decision Date | 05 October 1945 |
| Citation | 23 So.2d 484,156 Fla. 435 |
| Parties | STATE ex rel. ALCALA v. GRAYSON, Acting Judge. |
| Court | Florida Supreme Court |
William C. Pierce, of Tampa, for relator.
J. Tom Watson, Atty., Gen., Reeves Bowen, Asst. Atty. Gen., and Luther W. Cobbey, Co. Sol. Cr. Court of Record, of Tampa, for respondent.
This is a case of original jurisdiction in prohibition.
Relator Alcala was put upon trial in the Criminal Court of Hillsborough County a jury was empaneled and sworn and two witnesses for the state were called; at that stage of the proceeding the presiding judge became convinced that the witnesses were committing prejury and that the defendant was responsible for the perjury and for that reason a mistrial was declared over Alcala's objection.
The question now is whether Alcala was in jeopardy and should not be required to stand trial again. The right to plead former jeopardy was sanctioned by the ancient common law and has long been guaranteed by our constitution. Any attempt to deprive an accused of its benefit should be allowed with extreme caution. In this state the rule has been long established and continuously adhered to that the power to declare a mistrial and discharge the jury should be exercised with great care and caution and should be done only in case of absolute necessity. Ellis v. State, 25 Fla. 702, 703, 6 So 768; Allen v. State, 52 Fla. 1, 41 So. 593, 120 Am.St.Rep. 188, 10 Ann.Cas. 1085; Fails v. State, 60 Fla. 8, 53 So. 612, Ann.Cas.1912B, 1146.
As to what is absolute necessity is often a difficult matter to ascertain. In State ex rel. Dato v. Himes, 134 Fla. 675, 184 So. 244, 246 we said that the causes which create the necessity must fall under one of three heads, namely:
'(1) Where the court is compelled by law to be adjourned before the jury can agree upon a verdict; (2) where the prisoner by his own misconduct places it out of the power of the jury to investigate his case correctly, thereby obtaining an unfair advantage of the state, or is himself, by the visitation of Providence, prevented from being able to attend to his trial; and (3) where there is no possibility for the jury to agree upon and return a verdict.'
Double jeopardy does not depend upon the result, or probable result, of the trial, but rather upon the fact of trial. If the court is legally constituted and has jurisdiction of the offense and the accused and the charge is legally sufficient to...
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