State v. Battle ( 1971 )

183 S.E.2d 641 (1971) 279 N.C. 484

STATE of North Carolina
v.
Roger Lee BATTLE.

No. 2.

Supreme Court of North Carolina.

October 13, 1971.

Atty. Gen. Robert Morgan, Asst. Attys. Gen. Wm. W. Melvin and T. Buie Costen for the State.

Spruill, Trotter & Lane by Cleveland P. Cherry Rocky Mount, for defendant appellant.

SHARP, Justice:

The "sacred principle of the common law" that no person can twice be put in jeopardy of life or limb for the same offense has always been an integral part of the law of North Carolina. State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838; State v. Crocker, 239 N.C. 446, 80 S.E.2d 243; State v. Prince, 63 N.C. 529; State v. Garrigues, 2 N.C. 241 (1795). Therefore, the decision in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), which made the double jeopardy provision of the Fifth Amendment applicable to the several states through the Fourteenth Amendment, added nothing to our law.

However, the general rule is that an order of mistrial in a criminal case will not support a plea of former jeopardy. See 53 Am.Jur., Trial § 1000 (1945). This rule prevails in North Carolina and in the federal courts. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824); State v. Whitson, 111 N.C. 695, 16 S.E. 332; State v. Honeycutt, 74 N.C. 391; State v. Bullock, 63 N.C. 570. See State v. Jefferson, 66 N.C. 309.

When the jurors declare their inability to agree, it must be left to the trial judge, in the exercise of his judicial discretion, to decide whether he will then declare a mistrial or require them to deliberate further. State v. Trippe, 222 N.C. 600, 24 S.E.2d 340. This is always a delicate question. Either releasing the jury "too soon" or holding it "too long" will bring charges of an abuse of discretion. "But, after all, they [the trial judges] have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office." United States v. Perez, supra at 580, 6 L.Ed. at 165.

After a jury has declared its inability to reach a verdict, the action of the trial judge in declaring a mistrial is reviewable only in case of gross abuse of discretion, and the burden is upon defendant to show such abuse. State v. Birckhead, supra. In this case no abuse of discretion appears. The judgment of the court below is

Affirmed.