¶1dissenting.
¶2Appellant was convicted at his third trial for having committed the crime of armed robbery. His first two trials resulted in mistrials, declared over his objection, for the failure of the two juries that tried the two cases to reach a verdict of guilty or not guilty. The record shows that the first jury stood 11 to 1 for conviction, and the second jury stood 7 to 5 for acquittal. The third jury convicted, and the trial judge imposed a sentence of eight years. This appeal is from the conviction and sentence.
¶3The appellant has raised two constitutional issues that, in my view, are meritorious and require reversal. The first issue relates to the time of the conduct of his third *11trial, maintains that it could not be conducted at the third term of court following the filing of a demand for trial, and this, to me, raises a due process issue. The second issue raises a double jeopardy violation in that his third trial for the same offense followed two mistrials declared by the trial judge in each case over his objection.
¶4The Time of Trial Issue
¶5If a proper demand for trial in a non-capital criminal case is filed at the first term of court, the accused must be tried at that term or the second term of court, and if he is not tried by the state at either of those two terms, "he shall be absolutely discharged and acquitted of the offense charged in the indictment.” Code Ann. § 27-1901.
¶6If a proper demand for trial is filed in a capital case, the state must try the defendant at the first, second, or third term of court, and if not so tried, "then he shall be absolutely discharged and acquitted of the offense charged in the indictment.” Code Ann. §§ 27-1901.1, 27-1901.2.
¶7In this case the appellant’s first two trials took place during the latter days of the second term of court. His third trial took place during the third term of court, and it therefore becomes very material as to whether he was charged with a capital or non-capital crime.
¶8The penalty for armed robbery in Georgia is death, imprisonment for life, or imprisonment for not less than one nor more than twenty years. Code Ann. § 26-1902.
¶9Assuming that Georgia’s death penalty statutes are constitutional, which I do not, the appellant contends that the state not only waived the death penalty in all three trials, but even went further and conceded in open court at all three trials that "this case does not fit in the death penalty category under the new death penalty statute.” Having made this concession at the first trial, whether it be deemed waiver or statement of fact and law, the state could not, under double jeopardy principles, successfully call for and impose the death penalty in any subsequent trial of the accused after the first trial. Green v. United States, 355 U. S. 184 (1957); Price v. Georgia, 398 U. S. 323 (1969). Therefore, the state, after waiving the death penalty or conceding that it was not applicable in the first trial, knew that the death penalty could not be imposed in *12a subsequent second, third, fourth, or fifth trial, and that the three-term statutory provision' with respect to demand for trial was not applicable. Once the state has waived the death penalty in a trial or conceded that the death penalty is not applicable in the case, the two-term statutory provision (Code Ann. § 27-1901) is applicable. I think the state is placed in the indefensible position of having contended in all three trials that the death penalty was not applicable, but, for purposes of conducting a third trial at the third term, it contends that the case tried at the third, term was a capital case.
¶10The appellant’s motion to dismiss the indictment at the beginning of the third term should have been granted; and the denial of the motion, the motion being based upon a statute that accorded all accused persons a procedural right, was an arbitrary denial of procedural due process of law.
¶11The Double Jeopardy Issue
¶12My position on double jeopardy following mistrials in hung-jury criminal cases, where the defendant does not consent to the mistrial, has been made quite clear. See my dissenting opinions in Cameron v. Caldwell, 232 Ga. 611 (208 SE2d 441) (1974), and Wood v. State, 234 Ga. 758 (218 SE2d 47) (1975).
¶13I continue of the view that "to hold that a hung jury in a criminal trial is the equivalent of'manifest necessity’ for the declaration of a mistrial that would permit the retrial of an accused is to make the double jeopardy provision in the Fifth Amendment and the due process provision in the Fourteenth Amendment, in combination, meaningless.” Wood v. State, supra, p. 765.
¶14The appellant was tried for the same offense by two separate juries in July of 1975. Bothjuri.es were unable to reach a verdict, the first by a vote of 11 to 1 for conviction and the second by a vote of 7 to 5 for acquittal. The third trial for the same offense was conducted in September of 1975, and the third jury convicted.
¶15Two witnesses testified for the state at the third trial, the victim of the robbery and a detective who testified as to his investigation and arrest of the appellant. The appellant testified in his own behalf, contended that he did not commit the robbery, that he was not at the scene of *13the robbery when it was committed, and that he had an alibi witness who was unavailable and in Michigan at the time of his trial. The robbery occurred in December of 1974, the appellant was arrested in January of 1975, and though a bail bond in the amount of $5,000 was authorized by the trial judge in February of 1975, the appellant, an indigent, has been incarcerated since his arrest. Though hé demanded trial at the first term after his arrest, he was not tried by the state. He remained incarcerated. He was then tried twice in July of 1975, and both juries refused to convict him. On the third try, the state achieved a conviction.
¶16This case is, to me, a blatant violation of the constitutional principles of double jeopardy and due process of law.
¶17I think the second and third trials of the appellant were unconstitutionally conducted, I think the appellant is now serving a sentence that was unconstitutionally imposed, and I would reverse the conviction achieved by the state at the third trial.
¶18I respectfully dissent.