Cameron v. Caldwell , 232 Ga. 611 ( 1974 )

Per curiam.

This appeal is from a habeas corpus judgment that remanded the appellant to custody. The sole question for decision is the issue of double jeopardy.

The appellant was tried twice for the same offense, and at the first trial he and another defendant were tried together. The jury convicted the other defendant, but the jury was unable to reach a verdict with respect to the appellant. The trial judge declared a mistrial in appellant’s case, and the appellant was subsequently tried on the same charge and convicted by a jury at his second trial. The appellant raised the issue of double jeopardy at his second trial, but his plea was overruled. Appellant filed a writ of habeas corpus raising the double jeopardy issue, and his plea was again rejected by the habeas court. The appellant has come here seeking review.

The double jeopardy provision in Georgia’s Constitution is: "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.” This court has consistently held that if a jury cannot agree upon a verdict in a criminal case, the trial judge may declare a mistrial, and the accused may then be tried a second time for the same offense. The declaration of a mistrial under such circumstances precludes an accused from successfully invoking the constitutional principle of double jeopardy at his second trial. See Hyde v. State, 196 Ga. 475 (26 SE2d 744) (1943).

Submitted March 25, 1974 Decided September 3, 1974. Willie L. Cameron, pro se. Arthur K. Bolton, Attorney General, for appellee.

The federal constitutional provision on this subject, in earlier days not applicable to Georgia but made applicable to the individual states by the Fourteenth Amendment, says: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” Code § 1-805.

The Supreme Court of the United States has held that this provision of the Federal Constitution does not prohibit a second trial of the accused when the jury in the first trial was unable to reach a verdict. See United States v. Perez, 9 Wheat. (22 U. S.) 579 (6 LE 165) (1824), and Illinois v. Somerville, 410 U. S. 458 (93 SC 1066, 35 LE2d 425) (1973).

Judgment affirmed.

All the Justices concur, except Gunter, J, who dissents.