White v. State, 54132

• Decision Date: 06 September 1977
• Docket Number: No. 2,No. 54132,54132,2
• Citation: 143 Ga.App. 315,238 S.E.2d 247
• Parties: Randolph W. WHITE v. The STATE
• Court: Georgia Court of Appeals

Page 247

238 S.E.2d 247

143 Ga.App. 315

Randolph W. WHITE v. The STATE.

No. 54132.

Court of Appeals of Georgia, Division No. 2.

Sept. 6, 1977.

Rehearing Denied Sept. 28, 1977.

Glover & Davis, William E. Anderson, Newnan, for appellant.

William F. Lee, Jr., Dist. Atty., Robert H. Sullivan, Asst. Dist. Atty., Newnan, for appellee.

SHULMAN, Judge.

Defendant, a youth of 15 years of age at the time of the alleged offense, was indicted for murder and entered a plea of "not guilty by reason of insanity." The trial court ordered psychiatric examination and evaluation and it was stipulated that the psychiatric reports would be admitted into evidence at the trial. With the consent of the district attorney, the defendant waived jury trial and agreed to be tried by the court without a jury. On December 6, 1976, after such trial and having heard evidence presented to the court, the judge acting as the finder of fact found the defendant to be insane and mentally incompetent at the time the act was committed and under the law acquitted the defendant of the offense against him. The court, in accordance with Code § 27-1503, properly ordered the defendant confined in the state hospital for the mentally ill. On the following day, December 7, 1976, with no explanation whatsoever appearing in the record, the court, erroneously denominating the defendant's plea as a "plea of guilty," abruptly set aside said "plea of guilty" and ordered the defendant held for trial at the March 1977 term of that court. It should again be noted that the actual plea was "not guilty by reason of insanity." Special pleas of autrefois acquit, former jeopardy and of res judicata were filed on behalf of the accused and all were denied by the trial judge. This court granted immediate review and defendant promptly appealed.

Defendant has at this time been incarcerated in the county jail for over nine months.

1. The sole issue presented for our consideration is whether jeopardy had attached so as to render the trial court's second order a nullity. There does not appear to be a case on this precise point in the annals of Georgia jurisprudence.

2. The Constitution of the State of Georgia provides, "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." Code Ann. § 2-115. A provision of similar import appears in the Federal Constitution. Code § 1-805. "Since the Double Jeopardy Clause of the Fifth Amendment nowhere distinguishes between bench and jury trials, the principles given expression through that clause apply to cases tried to a judge." U.S. v. Jenkins, 420 U.S. 358, 365, 95 S.Ct. 1006, 1011, 43 L.Ed.2d 250. "In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. (Cits.) In a non-jury trial, jeopardy attaches when the court begins to hear evidence. (Cits.)" Serfass v. U.S., 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265. See also Johnston & Co. v. Smith and Chafee, 83 Ga. 779, 10 S.E. 354, which holds that the finding of a court submitted under the evidence is to be treated as the verdict.

3. The case closest in point in Georgia is Lincoln v. State, 138 Ga.App. 234, 225 S.E.2d 708, where this court held that the defendant was put in jeopardy in a juvenile court hearing at which he pled guilty and was sentenced. When later he was indicted by the grand jury, the matter was res judicata and denial of his plea of double jeopardy was error.

There are several very persuasive decisions from other jurisdictions. In State v. Vincent, 25 Conn.Sup. 96, 197 A.2d 79, that court held: "Jeopardy ordinarily attaches when an accused has been placed on trial on a valid information before a court of competent jurisdiction, has been arraigned and has pleaded, and, if the trial is by court, when the trial has begun. McCarthy v. Zerbst, 85 F.2d 640 (10th Cir.), cert denied, 299 U.S. 610, 57 S.Ct. 313, 81 L.Ed. 450; see 22 C.J.S. Criminal Law § 241 n.69, p. 640, 15 Am.Jur., Criminal Law, § 369. And it is not the verdict or judgment which places a prisoner in jeopardy. People ex rel. Meyer v. Warden, 269 N.Y. 426, 199 N.E. 647. Double jeopardy does not depend upon the result of the trial but the fact of the trial. Green v. U.S., 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, 61 A.L.R.2d 1119 & note, 1141; 22 C.J.S. Criminal Law § 243 n.88, p. 642, 15 Am.Jur. 46, Criminal Law, § 369 n.11." Id., 197 A.2d at 81.

In the case of State v. Pittsburg Paving Brick Co., 117 Kan. 192, 230 P. 1035, the Kansas Supreme Court wrote: "The prosecution against appellants began, proceeded to arraignment, to pleas of not guilty, to waiver of jury, to presentation of the agreed facts, the acceptance of these by the court as the controlling facts, and the sufficiency of these facts to constitute the offense charged was brought to the attention of the court on the demurrer of the defendants. Our Constitution expressly provides that no person shall be twice put in jeopardy for the same offense, and it is well settled that a person is in jeopardy when he is regularly charged with a crime before a court of competent jurisdiction and a trial has commenced. In State v. Reed, 53 Kan. 767, 37 P. 174, 42 Am.St.Rep. 322, it was said: 'It is true that the jeopardy of the defendant began when the jury were impaneled and sworn and the reception of evidence was commenced, and it is also true that the discharge of the jury without the consent of the defendant, and...