The opinion
Potter, P. J.,
concurring. Judge Connors and I concur with the judgment, but our concurrence is based on a somewhat different view of the facts and the law than expressed by Judge Brown. Defendant argues in this court that the contested evidence, which was the cause of the mistrial, was admissible for the reasons that he had a right to impeach the testimony of Mrs. Slough concerning her husband’s peaceable character and that he had a right to show who was the actual
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aggressor on the night that Mr. Slough died. However, I do not find that these theories were argued to the trial court to resist the state’s motion for a mistrial. The state rested its motion on the contention that the defendant had no knowledge of the victim’s reputation for violence or of other particular acts by the victim. The state cited this court’s opinion in
State
v.
Brown
(Lucas Co. Ct. of Appeals No. 7679, October 25, 1974), unreported. In effect, the defendant is now arguing that if there was any reason, although not presented to the trial court for the admission of the evidence, it was error to deny the admission. I do not find this to be the law relative to the determination of objections as to the admission of evidence on appeal. See McCormick on Evidence (2 Ed. 1972) 113, at page 117, Section 52.
I would, nevertheless, concur that a mistrial was wrongfully granted and that the defendant, having been placed once in jeopardy, cannot now be retried. I do this reluctantly because of the serious nature of the charge and the interest of society.
In
United States
v.
Perez
(1824), 22 U. S. 579 , at page 580 ( 9 Wheat. 579, 580 ), Mr. Justice Story held as follows:
“ * * * We think, that in all cases of this nature, the law has invested Courts of justice with the 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. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be ex-termely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.* * *”
The American Criminal Law Review contains an excellent article on this subject, see Note, Double Jeopardy Consequences of Mistrial, Dismissal and Reversal of Conviction on
*247
Appeal, 16 Am. Crim. L. Rev. 235 . The author, beginning at page 249, outlines the judicial history of mistrials since the rendition of
Perez, supra.
Also, at page 249, the author indicates that
Downum
v.
United States
(1963), 372 U. S. 734 , and
United States
v.
Jorn
(1971), 400 U. S. 470 , which are cited in Judge Brown’s majority opinion, appear as “***a departure from this extremely deferential standard of review.” However,
Illinois
v.
Somerville
(1973), 410 U. S. 458 , and
Arizona
v.
Washington
(1978), 434 U. S. 497 , mark a return to what the author views as the casual treatment of the defendant’s “valued right.” See Note,
supra,
16 Am. Crim. L. Rev. 235 , at pages 250 to 253. Nevertheless,
Somerville, supra,
and
Washington, supra,
can be distinguished.
Somerville
involved a defect in an indictment; no evidence had been introduced.
Washington
was concerned with an improper remark by defense counsel during opening statement. “***The questions presented are whether the record reflects the kind of ‘necessity’ for the mistrial ruling that will avoid a valid plea of double jeopardy, and if so, whether the plea must nevertheless be allowed because the Arizona trial judge did not fully explain the reasons for his mistrial ruling.”
Washington, supra,
at page 498.
Although not the common law ruie, the United States rule is that jeopardy attaches in a jury trial after the jury is sworn. See
Crist
v.
Bretz
(1978), 437 U. S. 28 ; 15 Ohio Jurisprudence 2d Rev. 775, Criminal Law, Section 353, and cases therein cited. As to the history of the rule, see Note,
supra,
16 Am. Crim. L. Rev. 235 , at pages 241
et seq.
The “ ‘ * * * valued right [is] to have***[a] trial completed by a particular tribunal.’ ”
United States
v.
Jorn, supra,
at page 484. In
Washington, supra,
at pages 505 to 508, the court said the following:
“***Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate ‘manifest necessity’ for any mistrial declared over the objection of the defendant.
“The words ‘manifest necessity’ appropriately characterize the magnitude of the prosecutor’s burden. For that reason Mr. Justice Story’s classic formulation of the test has been quoted over and over again to provide guidance in the
*248
decision of a wide variety of cases. Nevertheless, those words do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge. Indeed, it is manifest that the key word ‘necessity’ cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a ‘high degree’ before concluding that a mistrial is appropriate.
“The question whether that ‘high degree’ has been reached is answered more easily in some kinds of cases than in others. At one extreme are cases in which a prosecutor requests a mistrial in order to buttress weaknesses in his evidence. Although there was a time when English judges served the Stuart monarchs by exercising a power to discharge a jury whenever it appeared that the Crown’s evidence would be insufficient to convict, the prohibition against double jeopardy as it evolved in this country was plainly intended to condemn this ‘abhorrent’ practice. As this Court noted in
United States
v.
Dinitz,
424 U. S. 600 , 611:
“ ‘The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where “bad-faith conduct by judge or prosecutor”... threatens the “[hjarassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict” the defendant.’
“Thus, the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence, or when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused.”
The
Washington
case turned, in part, upon the trial court’s assessment of possible juror bias created by the conceded improper comment of defense counsel. The case
sub judice
concerns a ruling on evidence, and, to this writer, does not rise to the level of possible juror bias or the requirement to give deference to the trial court’s opinion of possible bias. Furthermore, in the case
sub judice
there appears to have been no attention given to other alternatives. See Mr. Justice
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Marshall’s comments and dissent in
Washington, supra,
at pages 521 to 522, as follows:
“Although from this distance and in the absence of express findings it is impossible to determine the precise extent to which defense counsel’s remarks may have prejudiced the jury against the State, the circumstances set forth above suggest that any such prejudice may have been minimal and subject to cure through less drastic alternatives. For example, the jury could have been instructed to disregard any mention of prior legal rulings as irrelevant to the issues at hand, and to consider as evidence only the testimony and exhibits admitted through witnesses on the stand. Were there doubt whether such instructions alone would suffice to cure the taint, the jury could have been questioned about the extent of any prejudice. Given the anticipated length of the trial (almost two weeks), it is not unlikely that, had the jury been appropriately instructed when the court first found defense counsel to have erred in his opening statement, any prejudice would have dissipated before deliberations were to begin. For these reasons, it is impossible to conclude that a finding of necessity was implicit in the mere grant of the mistrial.”
In the
Washington
case the fact situation was much more favorable to the prosecution than the present fact situation. The cases above refer to rather obvious improper acts of the defense or acts of prosecutorial manipulation or erratic conduct by the court necessitating a mistrial. In the instant case, the mistrial was a belated effort by the trial court to correct what it believed to be errors in the admission of evidence. While there is precedent in Ohio for sustaining the declaration of a mistrial on this ground (improperly admitted evidence), see
State
v.
Wiley
(Ohio App. 1975), 324 N.E. 2d 287 , at least in that case, a mistrial was declared because of solicitude for the accused. See, also, Schulhofer, Jeopardy and Mistrials, 125 U. Pa. L. Rev. 449 , at page 481, as follows:
“Even in the absence of misconduct by counsel, improper evidence may be, and of course often is, aired before the jury. If the testimony is relatively insignificant, the jury simply may be instructed to disregard it, but if the evidence is highly prejudicial, counsel often will seek a mistrial to ensure that a truly unbiased finder of fact will decide the case. When mistrial orders of this kind are entered at the request of the prosecu
*250
tion, most courts considering double jeopardy claims scrutinize closely the need for mistrial. * * * ”
While not clearly articulated in the instant case, the alleged admission of improper evidence apparently was the grounds of “manifest necessity.” There was no statement in tiie record of exploration of alternative solutions.
In the case
sub judice,
there was no misconduct by either the' prosecution or defense. At best, there was a difference of opinion as to the rules of evidence, but this did not necessitate a mistrial. In the case under consideration, unlike the
Somerville
and
Washington
cases,
supra,
the state had rested; and, it can be concluded from the record that the defense had practically completed its case. See Schulhofer,
supra,
at pages 510 to 511, concerning stringent limitations upon declaring a mistrial after the state has rested.
Although I am of the opinion that the reason that the trial court declared a mistrial in the case
sub judice
was based upon the principle that the defendant had no knowledge of the victim’s reputation for violence, or of specific violent acts of the victim, nevertheless, I find that the defendant should not now be put to the expense, anxiety and embarrassment of a second trial, with restrictions on his liberty, and that the defendant should not have to forego his “ '***valued right to have his trial completed by a particular tribunal.’ ”
United States
v.
Jorn, supra,
at page 484. Mr. Justice Douglas in
Gori
v.
United States
(1961), 367 U. S. 364 , at page 372, in his dissent, referred to Mr. Justice Story’s oft-repeated statement in
United States
v.
Coolidge
(1815), 25 Fed. Cas. 622, 623 , that the trial court’s “ * * * discretion is to be exercised ‘only in very extraordinary and striking circumstances.’ ” Then, Mr. Justice Douglas, in
Gori, supra,
at page 373, made this closing observation which also seems fitting as a closing for this concurrence:
“ * * *The policy of the Bill of Rights is to make rare indeed the occasions when the citizen can for the same offense be required to run the gantlet twice. The risk of judicial arbitrariness rests where, in my view, the Constitution puts it — on the Government.”