Minter v. State

Court of Appeals of Georgia

Minter v. State

178 S.E.2d 335, 122 Ga. App. 695, 1970 Ga. App. LEXIS 1004

CourtCourt of Appeals of Georgia

DecidedOctober 26, 1970

Docket45679

StatusPublished

Cited by5 cases

This text of 178 S.E.2d 335 (Minter v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Minter v. State, 178 S.E.2d 335, 122 Ga. App. 695, 1970 Ga. App. LEXIS 1004 (Ga. Ct. App. 1970).

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Opinion

Hall, Presiding Judge.

Defendant appeals from the denial of his plea of former jeopardy. At the trial, and after the State had presented its case, the judge (sitting as fact finder) declared a mistrial when he discovered that one of defendant’s witnesses was a former client and he would be thereby prejudiced. The case was transferred to another division of the court. When it *696 came on the calendar again six months later, defendant filed his plea of former jeopardy. He contends the mistrial was declared upon an illegal ground and over his objection at the time. The term "mistrial” is technically a misnomer where a case is tried by a judge without a jury. The judge is merely withdrawing the case from his own consideration. Walker v. State, 19 Ga. App. 98 (90 SE 1041).

Submitted October 7, 1970 Decided October 26, 1970. Atkins & Atkins, Dorothy D. Atkins, for appellant. Hinson McAuliffe, Solicitor, Robert O’Neil, Frank A. Bowers, for appellee.

If a mistrial is granted over the objection of a defendant, then a plea of former jeopardy should be sustained. Bell v. State, 103 Ga. 397 (30 SE 294, 68 ASR 102); Oliveros v. State, 120 Ga. 237 (47 SE 627); Hopkins v. State, 6 Ga. App. 403 (65 SE 57). Here, however, there is nothing but defendant’s bare assertion that he so objected. There is no transcript or stipulation of evidence, nor anything else in the record to negate the recitation in the court’s order that the mistrial was granted "upon agreement of counsel for the defendant and counsel for the State, and upon good and sufficient cause being shown.” The order is presumed to recite the truth. 60 CJS 111, 118, Motions & Orders, § 65 (g) (2); Palmer Brick Co. v. Woodward, 135 Ga. 450 (69 SE 827). If it did not, defendant’s remedy was to file a motion to correct it, before the judge who issued it, at the same term of court, and while the matter was still fresh in his mind. It is too late to complain now.

Judgment affirmed.

Deen and Evans, JJ., concur.

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Hall, Presiding Judge.

Defendant appeals from the denial of his plea of former jeopardy. At the trial, and after the State had presented its case, the judge (sitting as fact finder) declared a mistrial when he discovered that one of defendant’s witnesses was a former client and he would be thereby prejudiced. The case was transferred to another division of the court. When it *696 came on the calendar again six months later, defendant filed his plea of former jeopardy. He contends the mistrial was declared upon an illegal ground and over his objection at the time. The term "mistrial” is technically a misnomer where a case is tried by a judge without a jury. The judge is merely withdrawing the case from his own consideration. Walker v. State, 19 Ga. App. 98 (90 SE 1041).

Submitted October 7, 1970 Decided October 26, 1970. Atkins & Atkins, Dorothy D. Atkins, for appellant. Hinson McAuliffe, Solicitor, Robert O’Neil, Frank A. Bowers, for appellee.

If a mistrial is granted over the objection of a defendant, then a plea of former jeopardy should be sustained. Bell v. State, 103 Ga. 397 (30 SE 294, 68 ASR 102); Oliveros v. State, 120 Ga. 237 (47 SE 627); Hopkins v. State, 6 Ga. App. 403 (65 SE 57). Here, however, there is nothing but defendant’s bare assertion that he so objected. There is no transcript or stipulation of evidence, nor anything else in the record to negate the recitation in the court’s order that the mistrial was granted "upon agreement of counsel for the defendant and counsel for the State, and upon good and sufficient cause being shown.” The order is presumed to recite the truth. 60 CJS 111, 118, Motions & Orders, § 65 (g) (2); Palmer Brick Co. v. Woodward, 135 Ga. 450 (69 SE 827). If it did not, defendant’s remedy was to file a motion to correct it, before the judge who issued it, at the same term of court, and while the matter was still fresh in his mind. It is too late to complain now.

Judgment affirmed.

Deen and Evans, JJ., concur.

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178 S.E.2d 335, 122 Ga. App. 695, 1970 Ga. App. LEXIS 1004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minter-v-state-gactapp-1970.

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