State v. Kirby

• Decision Date: 22 June 1977
• Docket Number: No. 20456,20456
• Court: South Carolina Supreme Court
• Parties: The STATE, Appellant, v. Gerald B. KIRBY and Charles King Stogner, Respondents.

Page 33

236 S.E.2d 33

269 S.C. 25

The STATE, Appellant, v. Gerald B. KIRBY and Charles King Stogner, Respondents.

No. 20456.

Supreme Court of South Carolina.

June 22, 1977.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Joseph R. Barker, Columbia, for appellant.

Frank B. Register, Jr., Lexington, Wesley Waites, Jr., West Columbia; and William O. Kneece, Columbia, for respondents.

NESS, Justice:

This is an appeal from the trial court's granting of a plea of former jeopardy. Upon a former trial for criminal conspiracy, at the close of the State's case, the respondents Kirby and Stogner were granted a brief recess to decide if they would offer any evidence. During this recess the solicitor damaged his dentures and was granted permission to go to his office to make repairs. He was later found unconscious in his apartment. The trial court recessed instructing the jury to return the next day.

The following morning the jury was apprised of the solicitor's death and the court sua sponte declared a mistrial.

When the case was next called for trial, the respondents entered a plea of former jeopardy which was granted on the grounds that the court in the prior trial failed to examine all of the circumstances and possibilities available before dictating a mistrial. We reverse.

"It is a rule of general recognition that one is in jeopardy when a legal jury is sworn and impaneled to try him, upon a valid indictment, in a competent Court, unless the jury before reaching a verdict be discharged with the prisoner's consent, or upon some ground of legal necessity or the verdict, if rendered, be set aside according to law." Ex Parte Prince, 185 S.C. 150, 159, 193 S.E. 429, 433 (1937). Also see State v. Bilton, 156 S.C. 324, 153 S.E. 269 (1930) and State v. Stephenson, 54 S.C. 234, 32 S.E. 305 (1898).

The theory of former jeopardy presupposes the imposition of the adjudicatory gauntlet only once when one is accused of a crime. This guarantee consists of three separate constitutional safeguards: (1) protection from prosecution for the same offense after acquittal; (2) protection against prosecution for the same offense after conviction; and (3) protection from multiple prosecution for the same offense after an improvidently granted mistrial. The safeguards derive their constitutional proportion through Article 1, Section 12 of the South Carolina Constitution and the Fifth Amendment of the United States Constitution made applicable to the states through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

In State v. Bilton, supra, this Court cited and approved the following general authority:

"The American cases hold generally that there must be a manifest necessity for the discharge of the jury and leave the Courts to determine in their discretion whether under all the circumstances of each case such necessity exists. When such necessity exists, a plea of former jeopardy will not prevail on a subsequent trial. But if the jury are discharged without defendant's consent for a reason legally insufficient and without an absolute necessity for it, the discharge is equivalent to an acquittal and may be pleaded as a bar to a subsequent indictment." 156 S.C. at 342, 153 S.E. at 276. See also State v. Ravencraft, 222 S.C. 139, 71 S.E.2d 798 (1952).

The pivotal issue determinative of the constitutional prohibition against double jeopardy is thus the existence of "manifest necessity" for the mistrial.

" (M)anifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings." U. S. v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971).

The power of a court to declare a mistrial ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious causes. We agree that the constitutional prohibition against double jeopardy permits a retrial following a mistrial only if there was "manifest necessity" for the mistrial, and that the discretionary power of a court to declare a mistrial ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes. U. S. v. Perez, 9 Wheat 579, 6 L. Ed. 165 (1824). Nonetheless, the United States Supreme Court has recognized the broad discretion reserved to a trial judge in declaring a mistrial in the "varying and often unique situations arising during the course of a criminal trial." Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). The Supreme Court in Somerville also quoted from Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961):

"Where for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment." 93 S.Ct....