DocketNumber： 29794
Judges： Hall, Gunter
Filed Date： 7/1/1975
Status： Precedential
Modified Date： 11/7/2024
Appellant Wood appeals from a conviction and sentence of 20 years for rape. The original indictment for rape and aggravated battery was on April 8, 1974. Wood filed a formal demand for trial during the April Term of court. His trial on both counts during the July Term of court resulted in a mistrial due to the judge’s determination that the jury was unable to reach a verdict. Wood was again brought to trial on the charge of rape during the October Term of the court, resulting in the verdict from which he appeals. Prior to this trial, the court granted a motion to acquit on the charge of aggravated
1. The appellant contends that his plea of former jeopardy should have been granted because the trial court abused its discretion in declaring a mistrial without the appellant’s consent where the members of the jury were unable to agree upon a verdict of guilt or innocence. We disagree.
The transcript shows that the jury deliberated in excess of eleven hours in the first trial prior to the court’s declaration of a mistrial. On three separate occasions the jury reported to the court that they were hopelessly deadlocked and unable to reach a decision. On the first two occasions, the court admonished the jury to reconsider their opinions in view of the evidence and the opinions of the other jurors. On the third occasion, the court polled the jury, asking each juror if it was conceivable that the jury could arrive at a decision with further deliberation. After determining that further deliberation would be fruitless, the court declared a mistrial.
This is a clear case of manifest necessity for the declaration of the mistrial lest otherwise the end of public justice be defeated. United States v. Perez, 22 U. S. (9 Wheat.) 579; Cameron v. Caldwell, 232 Ga. 611 (208 SE2d 441). For a discussion of the Perez test see Jones v. State, 232 Ga. 324 (206 SE2d 481).
2. The appellant was sworn with other witnesses at the start of the trial but elected not to testify. No witnesses were presented in his defense. He contends that the trial court committed reversible error in failing to grant a motion for mistrial based upon the following remarks of the District Attorney made during his concluding argument: "Now, Mr. Scott [appellant’s trial attorney] is going to go right on into alibi. He is talking about not injecting things not in evidence. I submit to you at this time that there is no evidence of any alibi in this case even though we have heard alibi, alibi, alibi. You have heard him ask about him playing baseball. I don’t see any evidence of that. I saw a whole group of witnesses sworn earlier in the trial last Tuesday evening. I saw that, but I have seen none of them testify. Now, I don’t know what his argument is going to be —”
The above statement was a comment on the appellant’s failure to produce evidence. It was not a comment on the appellant’s failure to testify as prohibited by Code § 38-119. Dorsey v. State, 204 Ga. 345 (3) (49 SE2d 886). The comment here is inapposite to the one found in Salisbury v. State, 221 Ga. 718 (146 SE2d 776).
3. The appellant contends the trial court erred in admitting testimony of the aggravated battery for the reason that the court had previously discharged the battery count under Code § 27-1901. We disagree. " 'One of the exceptions to the rule that on prosecution for a particular crime evidence which tends to show that the defendant committed another crime wholly independent from that for which he is on trial is irrelevant and inadmissible, is where the other crime is a part of the res gestae.’ ” King v. State, 230 Ga. 581 (2) (198 SE2d 305); Katzensky v. State, 228 Ga. 6 (1) (183 SE2d 749); Floyd v. State, 143 Ga. 286 (2) (84 SE 971).
Judgment affirmed.