Opinion
28110.
SUBMITTED SEPTEMBER 10, 1973.
DECIDED OCTOBER 4, 1973.
Armed robbery. Richmond Superior Court. Before Judge Pierce.
Nicholson Fleming, George C. Nicholson, B. H. Barton, for appellant.
Richard Allen, District Attorney, Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, Assistant Attorney General, B. Dean Grindle, Jr., Deputy Assistant Attorney General, for appellee.
1. Where a conviction is set aside upon a petition for writ of habeas corpus and the judgment directs that the prisoner be retried, such retrial does not amount to double jeopardy.
2. Where more than one crime is committed in a single course of criminal conduct, an indictment charging separate crimes in different counts of the indictment is not subject to demurrer or motion to quash.
3. Where a retrial is ordered upon a petition for writ of habeas corpus as set forth in the first headnote above within a specified period of time, but not tried within such time limitation because of the action of the prisoner, the prisoner is not subject to being released without trial.
4. While a prisoner is entitled as a matter of right to one jury trial upon a special plea of insanity, yet a second trial after an adverse verdict to the prisoner on such issue may only be granted in the sound discretion of the trial court.
5. The trial court did not err in overruling the prisoner's challenge to the array of the traverse jury.
6. The arraignment of a defendant properly takes place prior to the impaneling and swearing in of the jury.
SUBMITTED SEPTEMBER 10, 1973 — DECIDED OCTOBER 4, 1973.
Bobby Hardwick was indicted, tried and convicted in 1970 for two counts of armed robbery. An appeal to this court was dismissed for failure of the appellant to timely file a transcript or obtain an extension of time for such filing. See Hardwick v. State, 227 Ga. 467 ( 181 S.E.2d 376). Thereafter a petition for writ of habeas corpus was filed in the U.S. District Court for the Southern District of Georgia, one ground of which alleged that at the time of the original trial of the defendant a petition for removal to the U.S. District Court was pending. The writ was granted on this ground and the conviction set aside with direction that the defendant be retried within six months.
A special plea of insanity was heard by a jury and verdict returned adverse to the defendant. A second petition for removal to the U.S. District Court was filed during the six months granted the state to retry the defendant and again the case was remanded to the state court. The case was again set for trial but not tried when a continuance was granted because of illness of counsel for the defendant. Between the time the case was originally remanded for retrial upon the petition for writ of habeas corpus and the arraignment of the defendant after the special plea of insanity was heard, the grand jury found a special presentment charging the defendant, in addition to the original two counts of armed robbery, with two counts of aggravated assault. Motion to quash the indictment, a second special plea of insanity, challenge to the array of the traverse jury and plea of former jeopardy were overruled and, thereafter, the defendant was again tried and convicted upon all counts of the indictment and the present appeal filed.
1. Under decisions exemplified by Jones v. State, 226 Ga. 747 (1) ( 177 S.E.2d 231), and the cases there cited where the prior conviction of the defendant was set aside by the efforts of the defendant to go into jeopardy a second time, the trial court did not err in overruling the plea of former jeopardy, and as was there held the fact that the second trial was based upon a different indictment no way violated any constitutional right of the defendant.
2. Where, as in the present case, separate offenses arising out of the same basic transaction are alleged in separate counts of an indictment, to wit, armed robbery of two victims and aggravated assault of two other victims, it is not error to overrule a motion to quash the indictment which contends that all the alleged crimes arose out of the same transaction. Compare Gully v. State, 116 Ga. 527 ( 42 S.E. 790), and citations as to each such count constituting a separate crime.
3. It is contended that the failure to retry the defendant within the six month limitation imposed by the federal court decision requires his release. Under the facts of this case such contention is without merit. The case was set for trial within such period of time. It was not tried because the defendant filed a second petition for removal to the federal courts and after such petition was dismissed by the federal court and the case again remanded to the state court, the trial of the case was again delayed upon request of the defendant's counsel who was hospitalized as the result of a heart attack. Under such circumstances, it must be said that any delay in the retrial of the defendant was caused not by state's inaction, but by the action of and at the request of the defendant.
4. Where a special plea of insanity is filed and a jury trial had thereon, which verdict is adverse to the defendant, and the main case is not immediately thereafter tried, whether the defendant will be permitted to have another jury trial on a second special plea of insanity is a matter within the sound discretion of the trial court. Compare Flanagan v. State, 103 Ga. 619 ( 30 S.E. 550); Brackett v. State, 227 Ga. 493 ( 181 S.E.2d 380). This enumeration of error is without merit.
5. A challenge to the array of the traverse jury was made and overruled. The evidence submitted as to such issue may have authorized a finding that there had been no systematic inclusion of certain distinguishable and identifiable classes of persons, but it did not demand, if indeed it would have authorized, a finding that there had been a systematic exclusion of any such group or groups of persons. Nor would the excluded evidence of certain jurors as to the make up of isolated jury panels on which they have previously served have authorized a contrary finding. See White v. State, 230 Ga. 327 ( 196 S.E.2d 849), and cits. The trial court did not err in overruling the challenge to the array of the traverse jury.
6. The contention is made that the defendant was not properly arraigned in that the jury had not been impaneled at the time he was arraigned.
The language of the Code dealing with arraignment has not changed in substance since 1863. In 1866 this court held in Bryans v. State, 34 Ga. 323, that a jury cannot be impaneled and sworn until after arraignment. This law has not changed and as was held in that case, the issue is not joined until arraignment. Until arraignment or a waiver thereof there can be no jury impaneled and no placing of the defendant in jeopardy. The trial court did not err in ordering a plea of not guilty to be entered when the defendant stood mute upon his arraignment.
7. No reversible error being shown by any of the defendant's enumerations of error, the conviction must be affirmed.
Judgment affirmed. All the Justices concur, except Gunter, J., who concurs in the judgment only.