Summary
In Hooks v. State, 138 Ga. App. 539 (226 S.E.2d 765), it was held: "The mere fact that the defendant did not initiate the fight does not necessarily show that he was not guilty of aggravated assault with a knife, a deadly weapon."
Summary of this case from Carter v. StateOpinion
52071.
SUBMITTED APRIL 8, 1976.
DECIDED APRIL 21, 1976. REHEARING DENIED MAY 6, 1976.
Aggravated assault. Dougherty Superior Court. Before Judge Kelley.
Durden, Durden Allen, Rodney L. Allen, for appellant.
William S. Lee, District Attorney, Loring A. Gray, Jr., Assistant District Attorney, for appellee.
Defendant was indicted and tried for the offense of aggravated assault. A mistrial resulted when the jurors could not reach a verdict. On his next trial he was convicted and sentenced to 10 years. Defendant appeals. Held:
1. Defendant's first contention is that he had an affray with another in a restaurant and since the "victim" of the alleged aggravated assault had plead guilty to the offense of affray, the evidence was insufficient to convict him of a provoked assault on the victim with a deadly weapon (a knife). But the plea of guilty of the victim to the offense of affray is insufficient to demand a finding that this defendant was not guilty of aggravated assault. The mere fact that the defendant did not initiate the fight does not necessarily show that he was not guilty of aggravated assault with a knife, a deadly weapon. The evidence was sufficient to support the verdict. See Geiger v. State, 129 Ga. App. 488, 503 ( 199 S.E.2d 861); Ingram v. State, 204 Ga. 164, 184 ( 48 S.E.2d 891).
2. A retrial following a mistrial caused by a failure of the jury to agree on a verdict is not a case of double jeopardy in this state. See in this connection Bush v. State, 117 Ga. App. 310 ( 160 S.E.2d 456); Harwell v. State, 230 Ga. 480 ( 197 S.E.2d 708). It was within the discretion of the trial court to discharge the jury when they were unable to agree on a verdict. Defendant contends that the court failed to give the jury sufficient time to resolve its differences and to deliberate further, there being only a short period of deliberation. This alone is insufficient to show that the trial court abused its discretion by granting a mistrial. See Hyde v. State, 196 Ga. 475 (1), 479 ( 26 S.E.2d 744); Cameron v. Caldwell, 232 Ga. 611 ( 208 S.E.2d 441).
3. Further, defendant failed to offer a plea of former jeopardy before going to trial. A plea of former jeopardy is a personal privilege and may be waived. See Key v. State, 84 Ga. App. 599, 600 ( 66 S.E.2d 773); Denson v. State, 209 Ga. 355 ( 72 S.E.2d 725); Phelps v. State, 130 Ga. App. 344 ( 203 S.E.2d 320).
4. There is no merit in any of the errors enumerated.
Judgment affirmed. Pannell, P. J., and Marshall, J., concur.