Ricketts v. Williams ( 1977 )

Hall, Justice.

Williams was granted a new trial after a jury verdict on the basis of the finding by the original trial judge that "the verdict is decidedly and strongly against the weight of the evidence.” Code Ann. § 70-206. He was later convicted, and brought this habeas corpus action, which resulted in an order for his release. The habeas court ruled that the new trial order was "a finding that the evidence did not authorize the verdict” and that a retrial was barred under Code Ann. § 26-507 (d) (2). The state appeals, contending that the statutory double jeopardy bar does not apply to this case.

Marchman v. State,¹ 234 Ga. 40 (215 SE2d 467) (1975), held that if an appellate court reverses a conviction on the basis that there was no evidence to support the verdict, a retrial is barred by Code Ann. § 26-507 (d) (2). This would also be true where the trial judge grants a motion for a verdict of acquittal or not guilty under Code Ann. § 27-1802 (a). Merino v. State, 230 Ga. 604 (198 SE2d 311) (1973). In both instances, there is a ruling as a matter of law that there is no evidence to support a verdict of guilty.

We hold however that a grant of a new trial by the trial judge under Code Ann. § 70-202 ("contrary to evidence and the principles of justice and equity”) or Code Ann. § 70-206 ("decidedly and strongly against the weight of evidence”) does not result in a statutory double jeopardy bar under Code Ann. § 26-507 (d) (2). It has been repeatedly held that these general grounds for a new trial are directed solely to the sound discretion of the trial judge. "Grounds of a motion for new trial that the verdict is 'decidedly and strongly against the weight of evidence’ (Code § 70-206), and 'contrary to evidence and the principles of justice and equity’ (Code § 70-202), are addressed to the sound legal discretion of the trial judge and the law imposes upon him the duty of exercising this discretion. Lanier v. Tullis, 73 Ga. 142; Thompson v. Warren, 118 Ga. 644 (45 SE 912); McIntyre v. McIntyre, 120 Ga. 67 (47 SE 501, 102 ASR 71, 1 AC 606); Macon, Dublin & Savannah R. Co. v. Anchors, 140 Ga. 531 (79 SE 153); Mills v. State, 188 Ga. 616 (4 SE2d 453).

"The trial judge unqualifiedly overruled the general grounds of the motion for a new trial, and in doing so exercised the discretion vested in him by law. Where, as in the present case, the trial judge has exercised the discretion vested in him by law, and there is some evidence to support the verdict, the judgment overruling the general grounds of the motion for new trial is not error. Andrews v. Dilano, 206 Ga. 83 (55 SE2d 605); Shaw v. Miller, 213 Ga. 511, 513 (100 SE2d 179).” Kendrick v. Kendrick, 218 Ga. 460 (128 SE2d 496) (1962).

"Whether their verdict is contrary to the evidence, or contrary to its weight, or decidedly and strongly against is [sic] weight, is a question the law vests in the trial judge’s discretion. He may grant a new trial on these grounds, but this court has no such power. Where the trial judge approves the verdict, the sole question for determination by this court is whether there is any evidence sufficient to authorize it.” Adler v. Adler, 207 Ga. 394, 405 (61 SE2d 824) (1950). See also Ridley v. State, 236 Ga. 147 (223 SE2d 131) (1976); Walters v. State, 6 Ga. App. 565 (65 SE 357) (1909). A ruling on these grounds does not amount to any ruling on the evidence as a matter of law and as a result the first grant is not normally reviewable by the appellate courts. Smith v. Telecable of Columbus, 238 Ga. 559 (234 SE2d 24) (1977). Furthermore, a motion for new trial, if granted at the trial level has been held to be a forfeiture of any right to plead former jeopardy because of the grant of the new trial. Staggers v. State, 225 Ga. 581 (170 SE2d 430) (1969); Pride v. State, 125 Ga. 750 (54 SE 688) (1906); Taylor v. State, 110 Ga. 150 (35 SE 161) (1899). This is the general rule throughout the United States. Green v. United States, 355 U. S. 184 (1957); Annot., 61 ALR2d 1143.

Submtited July 29, 1977 Decided November 8, 1977. Arthur K. Bolton, Attorney General, Susan V. Boleyn, Staff Assistant Attorney General, for appellant. R. Alex Crumhley, Hester & Hester, Frank Hester, for appellee. Lewis R. Slaton, District Attorney, Carter Goode, Assistant District Attorney, amicus curiae.

The trial court erred in granting the writ of habeas corpus.

Judgment reversed.

All the Justices concur, except Jordan, J., who concurs in the judgment only, and Nichols, C. J., Hill and Bowles, JJ., who concur specially.

1 Three members of the court dissented (Ingram, Hall and Hill, JJ.) to the statutory construction of Code § 26-507 given by the majority. The General Assembly had the opportunity to overrule the majority opinion at its 1976 and 1977 sessions. While such a bill was introduced, it was not enacted into law. Under the normal rules of stare decisis regarding consistency and uniformity of decision, we will not re-examine the holding in Marchman.