I concur in the judgment. If the statement by the judge in the presence of the jury be treated as an error requir*244ing a new trial under the statutory command contained in the Civil Code, § 4334, it was a ruling of which the defendant alone had the right to complain; and as he protested against the withdrawal of the case, it should not have been ordered. I concur also in the ruling as to “necessity,” if it is intended thereby to mean that the mistrial is not the necessary result but the necessary cure, this distinction being proper in view of that provision in the bill of rights, intended to modify the former rule of construction, which was so strict that it more often defeated than served the ends of justice. It is fundamental that “no person shall be subject for the same offense to be twice pub in jeopardy of life or limb.” 5th Amend. Cons. U. S. In ancient days this was understood bo.mean that a trial once begun must terminate in a verdict, or else that the defendant could not be a second time arraigned for the same offense. In the change from barbaric conditions there has been a strong tendency to get away from a construction which compelled the starving and carting of juries in order to secure a verdict. In some-jurisdictions this tendency has found expression in statutory or constitutional provisions giving ' to the State, in specified instances, the right to sue out a writ of error. See State v. Lee, 66 Conn. 265, 48 Am. St. R. 202; Smith v. State, 41 N. J. L. 598; State v. Wyse, 33 S. C. 582. Compare People v. Webb, 38 Cal. 467; Jones v. State, 15 Ark. 261; U. S. v. Sanges, 144 U. S. 310. Compare State v. Jones, 7 Ga. 424, as to fraud of the accused.
Undoubtedly, however, the exemption from being twice put in jeopardy on its face is absolute; and hence, in treating a mistrial as- a qualification grafted by construction upon the unqualified language of the rule, the courts felt constrained to limit such exception to those instances in which it was ordered because of some extreme, manifest, urgent, or imperious necessity. But under the constitution of this State (Civil Code, § 5705) the, right to arraign the defendant after a mistrial does not depend upon construction. The very section of the bill of rights which contains the guaranty against double jeopardy is coupled with the words, “ save on his own motion for a new trial after conviction, or in case of mistrial.” The constitution does not define what sorb of a mistrial, and of course can nob mean one improperly granted. According to its explicit declaration it would seem to provide for a second *245arraignment where a mistrial had been ordered for any reason legally sufficient. Considering the gravity of the issue, it could never be granted capriciously, lior because of mere errors of the judge in admitting or excluding evidence, nor for erroneous rulings during the trial. For even if such errors have been adverse to the defendant, he may still have a chance of being acquitted, and is entitled to stand upon his deliverance. But in criminal, as well as civil cases, judicial investigation has for its purpose the ascertainment of truth and the administration of justice to both parties. There may be many occurrences in the presence of the jury which render this result so impossible — which so inevitably tend to vitiate the trial — that the judge in the exercise.of a sound legal discretion would be authorized to take the case from the jury and declare a mistrial. When he does so, the bill of rights declares that the mistrial shall not prevent a second arraignment. No matter what may be the general rule, no matter how limited and restricted the exceptions elsewhere, they afford no standard by which to measure the meaning of a new provision incorporated in our constitution in pursuance of a policy which was intended to broaden rather than restrict the rights of the State. This view is sustained even by those cases in our reports which hold that a mistrial can only be granted because of some moral or physical necessity. For-in Nolan v. State, 55 Ga. 524, where this language was first used in construing the new provision of the constitution, it was said that “ the tendency, of late, has been to lower the standard so as to comprehend moral as well as physical necessity, and, in the region of the moral, to be content with very moderate tests.” This “ moderate test,” if it can be called a necessity, does not consist merely in the sickness of the jurors, or other fact rendering it physically impossible to proceed with the case; but a mistrial may properly be allowed in consequence of any fact, occurrence, or misconduct calculated to vitiate' the verdict. The bystanders may cry, “ Hang him! Hang him ! ” as in Wool-folk’s case; and on motion therefor a mistrial might properly have been granted. The result would not have been different if a mob had invaded the court-room with shouts of “ Acquit him l Turn him loose!” In either case a mistrial is ordered because demanded by the ends of justice. The judge himself might feel called on to make such an order because of his own conduct, *246where he had inadvertently done an act which would vitiate the verdict. So, too, the misconduct of jurors, counsel, accused, or bystander might likewise be such as to authorize a mistrial. Not that it was physically or morally impossible to proceed with the trial such as it is or would then be. It could go on as a physical fact, as it did in Woolfollc’s case, but the verdict of acquittal or conviction would never be recognized as that calm and deliberate judgment of twelve men to which the accused was entitled, and to which, be it noted, the State was also entitled. A mistrial is not a necessary result of misconduct, but a cure made necessary by misconduct. It is not so much a necessary effect as a necessary remedy to prevent the effect.
"Of course, if the occurrence is one calculated to harm the defendant alone, he may choose to waive it and to have the trial procéed, and it would therefore usually be erroneous, as here, to order a mistrial over his objection. But if the conduct was such as to prejudice the State, or to prejudice both the accused and the State, it would be for the court to determine what action he should take under the peculiar facts. It is impossible to lay down a rule. It must be left to the sound legal discretion of the trial judge acting under his oath of office, and having due regard to the rights of the accused and of the State, and subject to review as in all other cases. The principle is probably as accurately stated as it is possible to do, in Thompson’s case, 155 U. S. 271, where it is said: “Courts of justice are invested with authority to discharge a jury from giving any verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public 'justice would otherwise be defeated, and to order a trial by another jury; and a defendant is not thereby twice put in jeopardy, within the meaning of the fifth amendment of the constitution of the United States.’/ If such language was not too broad under the constitution of the United States, which contains nothing about mistrials it is certainly not too broad under ours, which expressly saves the right to a second' arraignment after a mistrial. Civil Code, §5705. Iam authorized to state that Justice Candler concurs in the foregoing.