Opinion
November 20, 1951.
J. Ernest Collins, Panama City, and Robert M. Ervin, Tallahassee, for petitioner.
Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for respondent.
Petitioner was informed against for driving an automobile while intoxicated, causing personal injury to another and damages to personal property. He was put on trial March 5, 1951. The State submitted its evidence in chief. Defendant tendered three witnesses, the examination of two of whom was completed. During the examination of the third witness the Court became convinced that one or more of defendant's witnesses were swearing falsely and that their testimony was prejudicial to the rights of defendant. He thereupon announced that he would and did declare a mistrial.
The case was set for retrial April 5, 1951. On April 4th, the day before the trial, defendant moved for leave to withdraw his plea of not guilty and quash the information. Both motions were predicated on the contention that the second trial would constitute double jeopardy in violation of Section 12, Declaration of Rights, Constitution of Florida, F.S.A. Said motions having been promptly denied, defendant tendered his petition for prohibition in this Court, praying that respondent be restrained from proceeding with the trial.
The point for determination is whether or not Section 12, Declaration of Rights, Constitution of Florida, immunizes one from a second trial on the ground of double jeopardy, the Court having declared a mistrial because he was convinced that the rights of the defendant were prejudiced, account of the false swearing of his witnesses.
The doctrine generally approved in this country is that there must be a manifest necessity for the discharge of the jury, otherwise, it will not be permitted. The Courts in their discretion must determine whether under all the circumstances such necessity exists. When found to exist, if substantially supported, the plea of former jeopardy will not prevail on a subsequent trial. Allen v. State, 52 Fla. 1, 41 So. 593; State ex rel. Dato v. Himes, 134 Fla. 675, 184 So. 244; State ex rel. Alcala v. Grayson, 156 Fla. 435, 23 So.2d 484; State ex rel. Larkins v. Lewis, Fla., 54 So.2d 199.
In the last cited case we reviewed the question of second jeopardy and held that if the jury is discharged for reasons that are legally insufficient and devoid of necessity and without defendant's consent, the discharge is equivalent to an acquittal and may be pleaded in bar to further trial or subsequent indictment. The trial court must necessarily determine whether or not these elements inhere in or infect the trial before he is authorized to declare a mistrial and discharge the jury. The circumstances in each case must guide him in reaching his determination.
The record discloses that the witnesses for defendant had been to Blountstown in different automobiles to participate in a base ball game. Their testimony was vague and indefinite and for all the record discloses one might be warranted in assuming that it flowed from a species of mental rigor mortis, whether temporary or permanent could not be discerned. In either event it was the duty of the jury rather than the trial court to expound it. The trial court may determine the legal sufficiency of the evidence but he may not determine its probative value.
A majority of the court have reached the conclusion that the trial court was in error when he dismissed the jury and declared a mistrial, for which he must be and is hereby reversed. Since petitioner had been placed in jeopardy the motion to quash should have been granted. The writ of prohibition is granted and the petitioner is discharged.
It is so ordered.
SEBRING, C.J., and CHAPMAN, THOMAS and HOBSON, JJ., concur.
ROBERTS, J., dissents.