Darsey v. State , 136 Ga. 501 ( 1911 )

Per Curiam.

Justices Lumpkin, Beck, and Atkinson are of the following opinion on this point: In this State, it is the duty of the judge to charge the law in a criminal case, and the duty of the jury to accept the law given them in charge as correct. Nevertheless, the jury have it in their power to find a verdict of not guilty, and the judge can not properly refuse to receive it because it may not accord with his charge or the evidence. Under an indictment for murder, a finding of guilty of a lesser grade of homicide is an implied acquittal of murder. Whether or not the jury ought to have found this, under the evidence and the law applicable thereto, the judge can no more refuse to allow a partial acquittal than he can refuse to allow a total acquittal. This is entirely different from a ease where the verdict is informal, or does not express the finding of the jury clearly, or is for an offense not covered by the indictment. The judge having, over objection of defendant’s counsel, refused to receive a verdict of guilty of involuntary manslaughter because the law of that grade of homicide was not given to the jury in his charge, having required them to return to their room to further deliberate and find a verdict, and, after they could not agree on another verdict, having, over objection, declared a mistrial, when the case was again called for trial a plea of former jeopardy was a good plea in bar. A verdict of guilty of involuntary manslaughter was a verdict of the higher grade of involuntary manslaughter. Thomas v. State, 121 Ga. 331 (49 S. E. 273).

Chief Justice Eish, Presiding Justice Evans, and Justice Holden are of the opinion that the facts relied on to support the plea of former jeopardy are insufficient as a bar to the further prosecution of the case. They are of the opinion that on a trial for murder, where neither the evidence nor the charge of the court authorizes a verdict of involuntary manslaughter, the judge may refuse to accept a finding of the jury that the defendant is guilty of that grade of homicide, and if the jury subsequently are unable to agree upon a verdict of guilty of another grade of homicide authorized by the law and the evidence, or of not guilty, a mistrial may be legally declared.