---
title: Ga. Const. Art. I, Sec. I, Para. XVIII. Jeopardy of life or liberty more than once forbidden.
collection: code
id: ga-const:art-i-sec-i-para-xviii
cite_as: Ga. Const. Art. I, Sec. I, Para. XVIII
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---

# Ga. Const. Art. I, Sec. I, Para. XVIII. Jeopardy of life or liberty more than once forbidden.

A constitution provision shown as in force is in force as printed in the volume. A court decision can make a printed provision unenforceable without changing the volume, and the volume does not record that.

No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.

## Cross References

Due process of law and just compensation, U.S. Const., amend. 5, and §§ 16-1-6 et seq., and 38-2-438. Bail for juveniles, § 15-11-507. Multiple jeopardy in grand jury proceedings, § 17-7-53. Plea of nolo contendere constituting jeopardy, § 17-7-95.

## Law Reviews

For article, ‘‘Personal Rights, Property Rights and Due Process: A Comparison of Constitutional Protection in the Georgia Supreme Court and the United States Supreme Court,’’ see 9 Mercer L. Rev. 253 (1958). For article discussing developments in Georgia Criminal Law in 1976 to 1977, see 29 Mercer L. Rev. 55 (1977). For article, ‘‘Mistrials and the Double Jeopardy Clause,’’ see 14 Ga. L. Rev. 45 (1979). For annual survey of criminal law and procedure, see 35 Mercer L. Rev. 103 (1983). For survey of 1995 Eleventh Circuit cases on constitutional criminal procedure, see 47 Mercer L. Rev. 765 (1996).

For note, ‘‘The Posture of Former Jeopardy on Retrial,’’ see 9 Mercer L. Rev. 354 (1958).

For comment discussing appeal by state after acquittal, in light of State v. Evjue, 254 Wisc. 581, 37 N.W.2d 50 (1949), see 1 Mercer L. Rev. 306 (1950). For comment on State v. Vaughn, 207 Ga. 583, 63 S.E.2d 357 (1951), see 14 Ga. B.J. 72 (1951). For comment on Busbee v. State, 183 So. 2d 27 (Fla. Dist. Ct. App. 1966), discussing multiple prosecutions of distinct offenses arising from the same transaction, see 18 Mercer L. Rev. 304 (1966).

## 1976 Constitution.

Art. I, Sec. I, Para. XV.

## Definition of Liberty.

Liberty, as used in this paragraph, is not confined to detention of the person, but embraces every inalienable right of the citizen. Jenkins v. State, 14 Ga. App. 276, 80 S.E. 688 (1914).

## Nolle Prosequi Entered After Jeopardy Attached Amounts to Acquittal.

Reynolds v. State, 3 Ga. 53 (1847); Franklin v. State, 85 Ga. 570, 11 S.E. 876 (1890).

No applicability of former jeopardy

## Concept to Certain Traffic Violations.

— The constitutional concept of former jeopardy has a strict application to criminal prosecutions only, and will not be invoked when the traffic violations resulting in the mandatory suspension of a driver’s license are subsequently included in a determination of the driver’s status as a habitual offender. Williams v. State, 138 Ga. App. 662, 226 S.E.2d 816 (1976).

Distinction between successive prosecutions for speeding and for

## Driving Under Influence.

When a motorist is charged with speeding and driving under the influence in two counties, the motorist may be tried and convicted in both counties for speeding, but a conviction for driving under the influence in one county will bar prosecution in the other as this charge arises out of the same conduct in both counties. State v. Willis, 149 Ga. App. 509, 254 S.E.2d 743 (1979).

Statutes expand proscription of

## Double Jeopardy.

The 1968 Georgia Criminal Code expanded the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions. Therefore, questions of double jeopardy in Georgia must now be determined under the expanded statutory proscriptions of former Code 1933, §§ 26-505, 26-506, 26-507 (see now O.C.G.A. §§ 16-1-6, 16-1-7, and 16-1-8). Consequently, previous Georgia decisions applying constitutional standards of double jeopardy will generally not be applicable. State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974), overruled on other grounds, Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006); State v. Warren, 133 Ga. App. 793, 213 S.E.2d 53 (1975).

Effect of jeopardy and statute of

## Limitations on Subsequent Prosecutions When Previous General Accusation.

When a case belongs to the class of cases, such as possession of nontax-paid liquor when the state by the generality of the indictment need not be confined to proof of any specific date or transaction within the period of limitation, the result is that a plea of nolo contendere for a prior particular crime will usually operate as a bar for any such offense committed within the period of limitation previously to the second indictment, since to hold otherwise would twice place the defendant in jeopardy. Key v. State, 83 Ga. App. 839, 65 S.E.2d 278 (1951).

Following defendant’s conviction in superior court under an accusation which charged the defendant in general terms with the possession of alcoholic liquors, such conviction would operate as a bar to another prosecution for the same offense committed at any time within the two-year period immediately preceding the filing of the accusation. Gilstrap v. State, 90 Ga. App. 12, 81 S.E.2d 872 (1954).

When the state by the generality of the accusation is not confined to proof of any specific date or transaction within the period of the statute of limitations, the result is that a prosecution for a particular crime operates as a bar for any such offense committed within the period of limitation prior to the return of the accusation. Hawks v. State, 94 Ga. App. 594, 95 S.E.2d 764 (1956).

Defendant in jeopardy for second time when trial for lesser included

## Offense.

When the conviction or acquittal is upon an indictment covering no more than one of the smaller crimes included within a larger, since it is impossible one should be convicted of the larger without being also convicted of the smaller, thus, if one has been so found guilty or not guilty of the smaller, one is, when on trial for the larger, in jeopardy a second time for the offense, namely, the smaller offense. Jordan v. State, 75 Ga. App. 815, 44 S.E.2d 821 (1947). quent indictment in criminal case while previous indictment is still pending. Lastinger v. State, 84 Ga. App. 760, 67 S.E.2d 411 (1951).

In a criminal proceeding, the pendency of a former indictment for the same offense is no ground for a plea in abatement or in bar, although the accused may have been arraigned thereon and have filed a plea, as when several indictments for the same offense are pending against the same person, it is immaterial upon which the accused is first tried. Whenever the accused has been acquitted or convicted upon any one of them, the accused can plead such acquittal or conviction in bar of a prosecution of the others. Lastinger v. State, 84 Ga. App. 760, 67 S.E.2d 411 (1951).

The pendency of a prior indictment for the same offense based on the same facts for which the defendant was arraigned on and entered a plea did not place the defendant in jeopardy. Defendant did not face a repeated prosecution simply because the defendant was tried on a subsequent indictment. Hubbard v. State, 225 Ga. App. 154, 483 S.E.2d 115 (1997).

## No Error in Proceeding Upon subse-No Former Jeopardy When Trial Under Void Accusation.

A plea of former jeopardy cannot be predicated on the fact that the defendant has previously been put on trial under a void accusation, that accusation being an absolute nullity, the defendant could not waive defects therein and consent that the trial proceed. Culpepper v. State, 44 Ga. App. 351, 161 S.E. 849 (1931).

Constitutions control rights when

## Successive Prosecutions Involved.

When successive municipal and state prosecutions are involved, a criminal defendant’s rights are controlled solely by the state and federal Constitutions. State v. Burroughs, 244 Ga. 288, 260 S.E.2d 5 (1979), rev’d on other grounds, 448 U.S. 903, 100 S. Ct. 3044, 65 L. Ed. 2d 1134 (1980).

Double jeopardy does not preclude use of acquitted crime as ground for

## Probation Revocation.

The principle of double jeopardy does not preclude the use of a crime, for which a probationer has been acquitted by a jury, as a ground for revocation of probation. Johnson v. State, 240 Ga. 526, 242 S.E.2d 53, cert. denied, 439 U.S. 881, 99 S. Ct. 221, 58 L. Ed. 2d 194 (1978).

## Retrial on Count Quashed for Second Time Controlled by Statute.

Retrial of a charge of possession of a firearm by a convicted felon would not itself violate double jeopardy or any other constitutional right since the right not to be prosecuted on a count which was quashed for the second time was purely statutory pursuant to O.C.G.A. § 17-7-53.1. Langlands v. State, 282 Ga. 103, 646 S.E.2d 253 (2007).

## Venue.

Venue is jurisdictional in Georgia so as to allow its being raised by general grounds of motion for new trial, but it does not go to guilt or innocence of accused and this is not substantive such that jeopardy attaches. Patterson v. State, 162 Ga. App. 455, 291 S.E.2d 567 (1982).

Because the state failed to prove the element of venue beyond a reasonable doubt, and there was no indication in the record that the juvenile waived the requirement or that the court took judicial notice of venue as an element of the offenses charged, the juvenile’s adjudications of delinquency had to be reversed. However, although the delinquency adjudications had to be reversed, the state was permitted to retry the juvenile without violating the Double Jeopardy Clause, because there was otherwise sufficient evidence at trial to support the adjudications entered. In the Interest of J.B., 289 Ga. App. 617, 658 S.E.2d 194 (2008).

Cited in Reed v. State, 163 Ga. 206, 135 S.E. 748 (1926); Cliett v. State, 167 Ga. 835, 147 S.E. 35 (1929); Hall v. State, 41 Ga. App. 455, 153 S.E. 534 (1930); State v. B’Gos, 175 Ga. 627, 165 S.E. 566 (1932); Burns v. State, 191 Ga. 60, 11 S.E.2d 350 (1940); Williams v. State, 66 Ga. App. 93, 17 S.E.2d 83 (1941); Manry v. State, 77 Ga. App. 43, 47 S.E.2d 817 (1948); Dodd v. State, 85 Ga. App. 589, 69 S.E.2d 784 (1952); McGraw v. State, 85 Ga. App. 857, General Consideration (Cont’d) 70 S.E.2d 141 (1952); Massey v. State, 222 Ga. 143, 149 S.E.2d 118 (1966); Harwell v. State, 230 Ga. 480, 197 S.E.2d 708 (1973); Marchman v. State, 132 Ga. App. 677, 209 S.E.2d 88 (1974); Singer v. State, 156 Ga. App. 416, 274 S.E.2d 612 (1980); Walker v. State, 156 Ga. App. 478, 274 S.E.2d 680 (1980); State v. Abdi, 162 Ga. App. 20, 288 S.E.2d 772 (1982); Swafford v. State, 161 Ga. App. 139, 291 S.E.2d 3 (1982); Brooks v. State, 162 Ga. App. 485, 292 S.E.2d 89 (1982); State v. Hightower, 252 Ga. 220, 312 S.E.2d 610 (1984); Taylor v. State, 177 Ga. App. 624, 340 S.E.2d 263 (1986); Riley v. State, 181 Ga. App. 667, 353 S.E.2d 598 (1987); Eidson v. State, 182 Ga. App. 321, 355 S.E.2d 691 (1987); Cox v. State, 203 Ga. App. 869, 418 S.E.2d 133 (1992); Johnson v. State, 258 Ga. App. 33, 572 S.E.2d 669 (2002); Bentley v. State, 262 Ga. App. 541, 586 S.E.2d 32 (2003); Seymour v. State, 262 Ga. App. 823, 586 S.E.2d 713 (2003); Usher v. State, 290 Ga. App. 710, 659 S.E.2d 920 (2008); Freeman v. State, 329 Ga. App. 429, 765 S.E.2d 631 (2014).

Separate Offenses ardy for same offense signifies same

## Prohibition Against Second Jeopcriminal Act or Omission.

The words ‘‘same offense,’’ in this paragraph, prohibiting a second jeopardy, do not signify the same offense eo nomine, but the same criminal act or omission. Crumley v. City of Atlanta, 68 Ga. App. 69, 22 S.E.2d 181 (1942).

Single act may constitute two or

## More Distinct and Separate Offenses.

Dutton v. Smart, 222 Ga. 35, 148 S.E.2d 396 (1966).

No violation when act results in

## Injury to Two or More Persons.

When an unlawful act is committed resulting in the injury or death of two or more persons in the operation of a motor vehicle, the accused may be convicted of two or more crimes if two or more persons are the victims, without violating the constitutional provisions as it relates to former jeopardy. Wellons v. State, 77 Ga. App. 652, 48 S.E.2d 922 (1948).

Upon conviction of defendant of three counts of homicide by vehicle under O.C.G.A. § 40-6-393 through a violation of O.C.G.A. § 40-6-391, the driving under the influence statute, it was not a violation of double jeopardy to sentence defendant to 15 years for each of the homicide counts. Cox v. State, 243 Ga. App. 668, 533 S.E.2d 435 (2000).

Offender may be convicted of both offenses when they are not same of-


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