Lester v. State

33 Ga. 329 | Ga. | 1862

By the Court.

Lyon, J., delivering the opinion.

John W. Lester was arraigned for trial in the Superior Court of the county of Dougherty, on a charge of murder, and said cause was submitted to a jury selected, empannelled and sworn to try the same at the December Term, 1861, of said Court. After hearing the evidence and being charged with the cause by the Court, the jury were unable to agree upon a verdict and were in consequence discharged by the Court and a mistrial declared. At the next term of the Court, when the case was again called for trial, the accused filed his plea of former acquittal, and relied upon the order of the Court discharging the jury from the further consideration of said cause; at the December Term, 1861, without his consent to sustain the plea, and upon a hearing of the same the presiding Judge overruled the plea. That is the only question made by this record for our consideration.

We are clear that the decision of the Court below was right. Whenever the jury in a criminal case like this is discharged by the Court from the further consideration of the cause, because of the impossibility of the jury’s agreeing *331on a verdict, or on account of the illness of a juror, the prisoner or the Court, such discharge is an absolute necessity, and does not and cannot- operate as an acquittal of the accused. Goodwin vs. The People of New York, 18 Johns., 200; The State vs. McKee, 1 Baily, 651; Commonwealth vs. Cook, 6 Gray & Rawl., 577; Williford vs. The State, 23 Ga., 3.

Counsel for prisoner read and relied on the case of Reynolds vs. The State, 3d Kelly, 53. In that ease, after the cause had been submitted to the jury, the Solicitor General without cause entered a nolle prosequi. That this &ourt held in that case, and very justly, operated as an acquittal of the accused; but the question in that case has not the slightest affinity or analogy to the. one under consideration. The learned Judge who delivered that judgment, in his very elaborate opinion incidentally referred to the authorities and adjudications on the questions now before us, without giving an opinion of his own on the subject one way or the other, and upon a careful consideration of the authorities then collected, a candid inquirer cannot but admit that in a case of extreme or absolute necessity the jury may be discharged without the prisoner’s being thereby acquitted. This is the exception to the general rule that is conceded by nearly every adjudicator on the subject.

Let the judgment be affirmed.