Lyde v. State , 241 Ga. 111 ( 1978 )

241 Ga. 111 (1978) 243 S.E.2d 64

LYDE
v.
THE STATE.

33304.

Supreme Court of Georgia.

Submitted February 17, 1978. Decided March 8, 1978. Rehearing Denied March 28, 1978.

Douglass & Young, Orion L. Douglass, Bennet, Gilbert, Gilbert, Whittle, Harrell & Gayner, John M. Gayner, for appellant.

Glenn Thomas, Jr., District Attorney, John P. Rivers, Assistant District Attorney, Arthur K. Bolton, Attorney General, for appellee.

HALL, Justice.

Appellant is charged with murder, and his first trial ended in a mistrial on the motion of the state after jeopardy had attached. Prior to a second trial appellant filed a plea of former jeopardy, which was denied. This denial was certified for immediate review. The application to appeal was granted.

We need not reach appellant's claim that there was no manifest necessity for the declaration of a mistrial on the ground of testimony prejudicial to the state. The state points out that a mistrial was granted on at least two grounds, one of which was the fact that the trial judge had just learned that his brother was hospitalized because of a serious heart attack. Appellant's counsel stated that the defense had no objection to a mistrial granted because of this circumstance. Because the mistrial was granted with the consent of the defendant, he is barred from pleading former jeopardy and the motion was properly denied.

Judgment affirmed. All the Justices concur.