*1 623 in joins Weltner this dissent. 27,
Decided October 1988. Bird, Degnan, Alston & Peter Eastham, M. James L. appel- for lants.
Drew, Farnham, Eckl & Freeman, Theodore Barbara J. M. Frake, Sullivan, Pollaty Sullivan, & appellees. Michael E. for
46017. THE SCHIEFELBEIN v. STATE. (373 354) SE2d
Smith, Justice. This is appeal an from plea the trial court’s denial of a former of jeopardy. We affirm.
The appellant, Schiefelbein, Stephen Craig by was indicted a County grand Fulton jury alleged for murder. The offense occurred at 1252 Reeder Circle. The appellant’s case came in to trial Fulton County. A jury empaneled, was sworn and and four witnesses testi- During trial, fied. the day second of the attorney district learned that 1252 Reeder Circle is in County. DeKalb This by fact was confirmed defense counsel who had years. lived on Reeder Circle for five
The mistrial, state moved for a appellant and the moved for a directed acquittal verdict of which judge, was denied. The trial over the appellant’s objection, declared a mistrial citing improper venue necessity. and manifest County The case was bound over to DeKalb again where he was In County, appellant indicted. DeKalb the filed a plea of former jeopardy which was denied.
The statutory constitutional and law of require this State that all criminal cases county be tried in the where the crime was committed Const, unless provided VI, II, VI, otherwise by law. Art. Sec. Par. Ga. 1983; of OCGA County Superior 17-2-2. The Fulton ju- Court had § offense, murder, risdiction over the appellant but not over the be- cause alleged the in county offense occurred another and Fulton County any exception did not fit venue enumerated in OCGA 17-2- § 2. person
Jurisdiction of the only by is obtained the court of trial where under operative the statute jurisdic- the court has try tion to defendant; words, the in offense and the other where proper venue is established. Where there is no such jurisdiction and it has not ensuing judgment been waived the is void jeopardy and double has not attached. [Cits]. 624 State, (291 567) 455, (1982).1
Patterson v. App. 162 Ga. 457 SE2d Thus, stated, in the traditional rule is best Georgia a de- “[i]f county fendant is in in having jurisdiction tried one a court of the offense, in county, jeopardy but the crime occurred no another at- Daniel, Evidence, Georgia taches.” Handbook on Criminal 14-28 § (1986). The appellant challenges this traditional and rule contends *2 it plea that was error to his jeopardy. overrule in bar of former We disagree and protects follow the traditional adequately rule which the policy concerns behind v. Jeopardy the Double Clause. Patterson State, supra. Judgment concur, All the Justices except Gregory and affirmed.
Hunt, JJ., concur specially. who Justice, concurring specially.
Gregory, The reason the defendant could not be tried in Fulton Superior Court was because venue of the was in County. action DeKalb It merely problem adds to confusion refer jurisdic- to to the as one of tion. The Superior County Court jurisdiction of Fulton had of the person, of the appellant of the subject and matter of the trial.
The aspect unusual of prosecutor this case is that it was the who discovered and raised improper the issue of venue. rule The should be that a will given defendant be a choice under such a circumstance. He may any objection waive go to venue and on to right insist his on with the first trial. If he proper may chooses to insist on the he so venue do complain but cannot of jeopardy double when the second trial takes place in the proper venue.
I am authorized to in joins state that Justice Hunt this concur- rence. 31, 1988
Decided October Joiner, J. Robert for appellant. Wilson, Withers,
Robert E. Attorney, Nelly District F. Assistant Bowers, General, District Attorney, Attorney Michael J. appellee. for 1 held, when, placed jeopardy This court has also in in defendant is a court of com “[a] petent jurisdiction indictment, arraigned, pled jury with a sufficient he has been has and a impaneled State, 690, (238 (Emphasis supplied.) has been and sworn.” v. Shaw Ga. 692 239 434) (1977). SE2d