Miller v. State , 237 Ga. 557 ( 1976 )

Hill, Justice,

concurring.

I concur in the opinion and judgment of the court and in the denial of the motion for rehearing. I wish to add a short explanation in response to the district attorney’s motion for rehearing.

The district attorney argues that the result in this case is contrary to our decision in Orvis v. State, 237 Ga. 6 (226 SE2d 570) (1976), in which we found no double jeopardy bar following two mistrials which resulted from hung juries. In Orvis (237 Ga. at 8) we pointed out that"... the possibility of a retrial after the discharge of the jury for failure to agree also serves to prevent a single juror from unreasonably holding out for acquittal, causing a mistrial, and thereby invoking the bar of double jeopardy single-handedly.”

By motion for rehearing the district attorney points out that the decision in this case will permit one juror single-handedly to prevent the imposition of the death penalty. He urges that the decision in this case is inconsistent with Orvis.

Orvis involved the constitutional bar of double jeopardy; this decision involves statutory construction, not double jeopardy. Orvis involved a hung jury as to guilt or innocence; this case involves a hung jury as to imposing the death sentence. There is a difference between a juror not being able to single-handedly invoke the bar of double jeopardy and free a person indicted for crime, and a juror (after being qualified by the state as to the death penalty and being accepted as a juror) being able to single-handedly cause a life sentence (rather than the death penalty) to be imposed. The public is not unprotected when a Witherspoon qualified juror holds out for a life sentence.

I am authorized to state that Justice Hall joins in this concurrence.