1. That the accused is not entitled to a discharge upon his motion therefor made at the time when the mistrial was declared, or for any cause embraced in that motion, stands adjudged and detei’mined by the judgment of the superior court rendered at that term denying the motion. This judgment has never been reversed, and whether erroneous or not, is conclusive upon the question decided. Consequently, there is no occasion now to construe and reconcile the cases of Geiger v. The State, 25 Ga. 667, and Little v. The State, 54 Ga. 24. We, however, do not see why, as a reason for declaring a mistrial, a persistent disagreement of the jury up to the moment when the term of the court would expire by operation of law, would not be equivalent to inevitable accident or providential cause, within.the meaning of the former ease.
2. But the benefit of the original demand for trial would not be wholly lost by reason of the mistrial, followed by a rightful refusal to discharge the accused at. the term when the mistrial occurred. The demand would stand over and be operative to secure a trial at the next term. This would probably be so, even had the trial resulted in a verdict of guilty, and a new trial been granted on the prisoner’s motion. An intimation to this effect was made in Silvey v. The State, 84 Ga. 44. Nor would entering a nolle prosequi on the indictment, without the pxdsoner’s consent, depxdve him of the right. to be either tried or disclxax’ged. Durham v. The State, 9 Ga. 306. His x’ight was to be tried, either on that indictment or some other chax'ging the same offence, or to-*717be acquitted, of that offence. A trial on a new indictment for the same offence would satisfy the demand. Jackson v. The State, 76 Ga. 551(2).
3. But his discharge and acquittal under the demand could only be operative as to the offence charged in the indictment which was nol prosed, the indictment pending when the demand for trial was made. Code, §4648. Here, as stated in the written application for discharge, the indictment now pending, the one found after thenolle prosequi was entered, charges the prisoner “ with nominally the same, but really charging him with a different offence, the said first indictment charging him with a felony under section 4421 of the code, and said last indictment chai’ging him with a misdemeanor under section 4435 of the code.” This statement, instead of affirming the identity of the offence charged in the second indictment with that charged in the first, puts a direct negative upon that proposition. But for this negative, we might infer from reading the two indictments that they both cover one and the same criminal transaction, and therefore that they charge substantially one and the same offence. Holt v. The State, 38 Ga. 187. The accused, however, iuformed the court below, and by the record so informs this court, that the two offences, though .nominally the same, are substantially different. Being substantially different, though the accused was entitled to be discharged and acquitted of the offence charged in the former indictment-, he had no right to the discharge and acquittal applied for. As we understand his application, it sought a discharge from the pending indictment and the offence to which it relates, not from the indictment which had been nol prosed and the offence charged in it; that is, if he is to be taken at his word as to the two offences being substantially different. We discover no error in denying the discharge as to the indictment now pending and the offence to which it relates. Judgment affirmed.
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