The opinion
Dissenting Opinion (Webber Joins)
Siddall, J.
The respondent was charged with buying, receiving, and aiding in concealing stolen property. The articles alleged to have been stolen consisted of some twenty-seven articles of furniture. After the jury was impaneled and sworn in the first trial, the State presented as a witness one George Webber who testified that he worked at one time for Reynolds Bros., Inc., furniture manufacturer and alleged owner of the articles of furniture claimed by the State to have been stolen. He stated that while he was so employed he was approached by the respondent, with whom he had had previous business relations, who requested him to pick up some furniture or parts from the employer of the witness with the warning, “You be careful you don’t get caught.” He was to be paid three or four dollars for each article delivered to the respondent. He testified that over a period of two months he stole from his employer articles of furniture, including tops and spindles, which he turned over to the respondent. Over respondent’s objection he identified the various articles of furniture marked for identification as exhibits numbered from one to twenty-six, inclusive, as being similar to articles of furniture which he stated he stole from Reynolds Bros., Inc. and sold to the respondent.
Ronello Reynolds and his brother Edward testified for the State. Ronello Reynolds, President of Reynolds Bros., *453 Inc., over respondent’s objection identified the various marked exhibits as having been manufactured by his company, some of which, however, were not stained or the finish material applied at the mill. He stated that he never disposed of any Class A 1 manufactured furniture that had not been completed with finish. He also testified that all of the market exhibits before assembly were composed of first grade pieces, and that there were no seconds or reject pieces among the exhibits; that he and his brother were the only persons authorized to sell manufactured articles from the factory, and that he never sold any of these articles, or similar articles, to the witness George Webber or to the respondent. He also testified that articles similar to the marked exhibits were missing from the inventories once a week; that they were there at night and gone in the morning and that there was no way to account for their disappearance. Against the objection of the respondent he was permitted to give evidence of the value of the various articles of furniture covered by the marked exhibits. Each brother testified that the company did not sell finished furniture to anyone at retail.
Edward Reynolds, Vice President and Plant Superintendent of the Reynolds Bros., Inc. testified over objection that exhibits one to twenty-six, inclusive, were manufactured by his company. He testified that the marked exhibits were all “firsts” and that he never sold any of the company’s products to George Webber and that he did not sell any item similar to the marked exhibits to John B. Sanborn, but did at one time sell Sanborn a telephone bench which was a “poor second.”
Pitt J. Smith testified over objection that he had purchased from the respondent the items of furniture identified by exhibits one to twenty-six. The exhibits were offered and admitted over respondent’s objections. After the State had closed its case, it was permitted over respondent’s *454 objection to reopen the case for the purpose of recalling Ronello and Edward Reynolds to correct certain phases of their testimony. Ronello Reynolds qualified his previous testimony by stating that it was a common practice of the company to sell furniture to employees at cost; that the practice was so common that he forgot to mention it. He stated that he did not sell any of the articles of furniture identified by the numbered exhibits, or similar articles, to the employee George Webber. Edward Reynolds qualified his previous testimony that he had sold no furniture to anyone in 1956 and testified that he had sold furniture to employees, but not to George Webber. Based upon this change in the testimony of the two witnesses the Court ordered a mistrial.
The record discloses that the mistrial was ordered by the court in view of the fact that exhibits one to twenty-six, together with a great deal of testimony concerning them, were admitted over the objection of the respondent, and would not have been admitted had the later testimony of Ronello and Edward Reynolds been given prior to the rulings by the court on the exhibits and the testimony relating to them. Counsel for the respondent objected to the mistrial order and stated that the respondent was willing to waive any right to a mistrial upon the express condition that the court rule out exhibits one to twenty-six and instruct the jury to completely disregard these exhibits and all testimony relating thereto. All of the testimony relating to the exhibits did not depend upon the final admission of the exhibits in evidence. There was sufficient admissible evidence in the case, if believed, to warrant a conviction. The task of instructing the jury on what testimony to consider and what not to consider was undoubtedly a difficult one. However, the court did not base his mistrial order upon the mere difficulty of giving proper instructions. He stated that he was convinced that the testi *455 mony concerning the exhibits was so involved with all of the other testimony that the jury could not be expected to understand what they were to disregard and what they were to regard, and “that a fair trial could not take place if the case continued before that jury who had heard so much testimony which they should not have heard.”
The law is well settled that jeopardy begins when a respondent is put upon trial before a court of competent jurisdiction, upon a sufficient indictment, after the jury has been impaneled and sworn. State v. Slorah, 118 Me. 203, 208 , 106 A. 768 . All of these elements necessary to the attachment of jeopardy were present.
Under the strict rules of common law the discharge of the jury after the attachment of jeopardy was equivalent to an acquittal. However, modern practice has brought about a relaxation of this strict rule to the extent that the court may now discharge a jury after it has been impaneled and sworn where manifest and urgent necessity calls for such action. The exercise of this power cannot be employed arbitrarily, but must be left to the sound legal discretion of the presiding justice, acting cautiously under his oath of office and having due regard to the rights of both the respondent and the State. This principle is expressed in 15 Am. Jur. Criminal Law, Sec. 406, p. 75, 76, as follows:
“Under the strict practice which formerly prevailed, in England at least, the discharge of the jury in a criminal case for any cause after the proceedings had advanced to such a stage that jeopardy had attached, but before a verdict of acquittal or conviction, was held to sustain a plea of former jeopardy, and therefore, to operate practically as a discharge of the prisoner. In deference, however, to the necessities of justice, this strict rule has been greatly relaxed, and the general modern rule is that the court may discharge a jury without working an acquittal of the de *456 fendant, in any case where the ends of justice, under the circumstances, would otherwise be defeated. The court is to exercise a sound discretion on the subject, and it is impossible to define all the circumstances which would render it proper for the court to interfere. 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 extremely careful. The courts, however, undoubtedly have the right to order the discharge; and the security which the public has for the faithful, sound, and conscientious exercise of this discretion rests on the responsibility of the judges under their oaths of office. In order, however, to justify an exercise of this power, the occasion for it must be very cogent, or, as some courts have said, there must be an absolute or manifest necessity. The power to discharge cannot be arbitrarily exercised.”
For a further discussion of the same principle see WHARTON’S CRIMINAL LAW, 12th Ed., Vol. 1, Sec. 895; 22 C. J. S., Criminal Law, Sec. 259.
Our own court in State v. Slorah, supra, has given careful consideration to the question of the right of the court to -withdraw a criminal case from further consideration by the jury after jeopardy of the respondent has attached. We quote at length from this opinion as follows:
“Does the record disclose conditions creating what has been termed by the courts a manifest, urgent necessity, such as warranted the presiding Justice in withdrawing the case from the jury and discharging them from further consideration of it. We think it does.
Anciently it is claimed that a jury once sworn in a ‘case of life or member’ could not be discharged by the court, but must render a verdict. Coke Litt., 277. Whether ever enforced to its full limit, which as one case puts it would require ‘the confinement of the jury till death, if they do not *457 agree,’ Winsor v. Queen, 1 L. R., Q. B. C., 1865, page 394, is of no consequence. The rigor of and strict compliance with the technicalities of the common law in safeguarding the accused in criminal cases has been much relaxed since the decrease in the number of capital offenses. As early as the time of Blackstone, at least, an exception in this respect had been introduced in practice and it was recognized that juries in criminal cases might be discharged during the trial in cases of ‘evident necessity.’ Blackstone’s Com., Vol. 4, page 361.
The expression ‘evident necessity’ has been expanded and defined in practice in the course of time as occasions have arisen until under certain conditions there is no longer any question of the right of the court to stop a trial even in a capital case, and withdraw the case from the further consideration of the jury. In attempting to define those conditions, as the court puts it in the case of Winsor v. Queen, supra, ‘We cannot approach nearer to precision than by describing' the degree (of need) as a high degree such as in the wider sense of the word might be denoted by necessity.’
Certain conditions, if arising in the trial of a case, have come to be well recognized as constituting that ‘urgent necessity’ which will warrant the discharge of a jury, and if they appear of record will bar a plea of former jeopardy: (1) the consent of the respondent, (2) illness of the court, a member of the jury, or the respondent, (3) the absenting from the trial of a member of the panel or of the respondent, (4) where the term of court is fixed in duration and ends before verdict, (5) where the jury cannot agree. . . .
It is not easy to state the principle so as to cover all conditions that may arise, and the above are only examples of the instances first gaining recognition by the courts and illustrative of the principle. It is now equally as well recognized that there are certain other conditions that create what have been termed a moral or legal necessity, as distinguished from physical necessity such as the *458 illness of the court or jury. Nolan v. State, 55 Ga., 521 ; Andrews v. State, 174 Ala., 11 . . . .
Of the conditions, except as found in the decided cases, more cannot be said than that in all cases, capital or otherwise, they must be left to the sound legal discretion of the presiding Justice, acting under his oath of office, having due regard to the rights of both the accused and the State, and subject to review by this court .... Perhaps, the most comprehensive statement of the law is found in United States v. Perez, 9 Wheat., 579 , by Justice Story, and adopted in Thompson v. United States, supra:
‘Courts of justice are invested with the authority to discharge a jury from giving a verdict, whenever in their opinion taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of justice would otherwise be defeated.’ . . .
To render a verdict void in civil cases it need not appear that the jury was actually prejudiced, biased, or influenced by the occurrence. If it may have affected their ability to render an impartial verdict, it is sufficient .... We think the same considerations should apply in criminal cases whether it might affect adversely the State or the respondent, State v. Hascall, 6 N. H., 352. Both are entitled to a fair trial.”
In the Slorah case the court sets out certain conditions well recognized as constituting manifest or urgent necessity. Manifest and urgent necessity does not always arise from physical necessity. As stated in the Slorah case, it may arise from moral or legal necessity as distinguished from physical necessity. Our court does not attempt to define the exact conditions under which manifest necessity exists. They are left to the sound discretion of the presiding justice, acting under his oath of office, and subject to review by this court. Other courts have followed *459 the same practice, and have been reluctant to define the exact conditions under which such a necessity may exist.
It is clear that an arbitrary order of mistrial operates as an acquittal. According to the overwhelming weight of authority, the discharge of a jury on account of the inability of the prosecution to proceed with the trial in the absence of necessary witnesses or other evidence to prove the crime charged operates as an acquittal. See Cornero v. United States, 48 F. (2nd) 69, 74 A.L.R. 797 ; 74 A.L.R. 803 (annotation); 15 Am. Jur. Criminal Law, Sec. 409.
We have been unable to find a case in which the conditions facing the court at the time of mistrial were the same as in this case. However, the general statement of the law in United States v. Perez , as quoted in the Slorah case has met with approval in other and more recent cases.
In the case of Thompson v. United States, 155 U. S. 271, 273, 274 , it came to the attention of the court that one of the jurors had been a member of the grand jury that returned the indictment. The court, without the consent of the defendant, and under exceptions, discharged the jury and directed that another jury should be called. Answering defendant’s plea of former jeopardy the court said:
“As to the question raised by the plea of former jeopardy, it is sufficiently answered by citing United States v. Perez, 22 U. S. 9 Wheat. 579 6:165; Simmons v. United States, 142 U. S. 148 35: 968, and Logan v. United States, 144 U. S. 263 36: 429. Those cases clearly establish the law of this court, that courts of justice are invested 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, and to order a trial by another jury; and that the defendant is *460 not thereby twice put in jeopardy within the meaning of the 5th Amendment to the Constitution of the United States.”
In Wade v. Hunter, 336 U. S. 684 , a soldier participating in the invasion of Germany was put on trial before a court-martial. After hearing the evidence and arguments the court-martial closed to consider the case. Later the court-martial reopened and announced a continuance in order to hear witnesses not then available. Subsequently, the Army’s advance having so increased its distance from the residence of the witnesses that the case could not be completed within a reasonable time, the charges were withdrawn and transmitted to another military unit. Another court-martial was convened and a plea of former jeopardy was made by the prisoner. The court after quoting from the Perez case said:
“The rule announced in the Perez Case has been the basis for all later decision of this Court on double jeopardy. It attempts to lay down no rigid formula. Under the rule a trial can be discontinued when particular circumstances manifest a necessity for so doing, and when failure to discontinue would defeat the ends of justice. We see no reason why the same broad test should not be applied in deciding whether court-martial action runs counter to the Fifth Amendment’s provision against double jeopardy. Measured by the Perez rule to which we adhere, petitioner’s second court-martial trial was not the kind of double jeopardy within the intent of the Fifth Amendment.”
“We are urged to apply the Cornero interpretation of the ‘urgent necessity’ rule here. We are asked to adopt the Cornero rule under which petitioner contends the absence of witnesses can never justify discontinuance of a trial. Such a rigid formula is inconsistent with the guiding principles of the Perez decision to which we adhere. Those principles command courts in considering whether *461 a trial should be terminated without judgment to take ‘all circumstances into account’ and thereby forbid the mechanical application of an abstract formula. The value of the Perez principles thus lies in their capacity for informed application under widely different circumstances without injury to defendants or to the public interest.”
The Perez case, the Thompson case, and the case of Wade v. Hunter , were cited with approval in United States v. Gori, an appeal to the United States Court of Appeals, Second Circuit, based upon a plea of former jeopardy, reported in 282 F. (2nd) 43. At the former trial the Government during the examination of a witness ran into difficulty because of continuous formal objections by the defense and “interference on the part of the trial judge.” The court, during the course of the testimony of this witness, declared a mistrial “because of the conduct of the district attorney.” The court found that the prosecutor did nothing to instigate the declaration of mistrial. A majority of the court held that the prior trial did not support a plea for former jeopardy. On certiorari, the United States Supreme Court affirmed the decision of the Court of Appeals. Gori v. United States (1961)—U. S.—, 81 S. Ct. 1523 , 6 L. ed. (2nd) 901. We quote the following extracts from the majority opinion in that case:
“Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment. * * * * It is also clear that ‘This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served. . . .,’ * * * * and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion.”
*462 In Lovato v. New Mexico, 242 U. S. 199 , the accused had pleaded not guilty to an indictment for murder. Without withdrawing his plea, he demurred to the indictment. The demurrer was overruled and a jury was impaneled and sworn. It then appeared that the defendant had not been arraigned since the overruling of the demurrer. The court dismissed the jury and the respondent pleaded not guilty. The same jury was impaneled, and the case proceeded to trial. At the conclusion of the evidence for the prosecution, the defendant made a motion for a directed verdict on the ground of former jeopardy. The motion was denied, and a conviction for manslaughter followed. The same ground was relied upon in a motion in arrest of judgment which was denied, and an appeal was taken. The Supreme Court of New Mexico held that the question concerning double jeopardy was raised too late and affirmed the previous judgment. The U. S. Supreme Court, in affirming the judgment of the Supreme Court of New Mexico, withheld any opinion as to the correctness of the ruling of the court below concerning the failure to promptly raise the question of former jeopardy, but, citing the Perez case, found that the action taken by the trial judge was clearly within the bounds of sound judicial discretion.
In People v. Thomas, 15 Ill. (2nd) 344, 155 N. E. (2nd) 16 (1959), the court during the course of the trial, in the presence of the jury, instructed the jury to disregard a certain statement made by counsel for the respondent, and further remarked that the statement was “purely a manufactured and synthetic appeal.”
After a conference, the court, on motion of the prosecution, declared a mistrial. The respondent was again tried and at the second trial his motion to dismiss on the ground of former jeopardy was denied. Upon conviction he brought a writ of error in which he contended that he had been twice put in jeopardy for the same offense. In affirming *463 the conviction the court found it unnecessary to determine the propriety of the mistrial on the assumption that it was granted to protect the prosecution from unfairness. The court found in the record another basis for the mistrial because the trial judge had made a serious charge that would almost inevitably have prejudiced the respondent in the eyes of the jury. Under such circumstances, the court stated, a verdict of guilty probably would have been set aside. The court then said:
“The ends of justice can hardly be said to be served by requiring that a trial be continued to its conclusion after an inadvertent error by the trial judge has sharply minimized the possibility of sustaining a verdict for the prosecution. Cf. American Law Institute, Model Penal Code, Tent. Draft No. 5, sec. 1.09. Concepts of impartial justice and scrupulous fairness to a defendant do not include an opportunity to speculate upon the chance of a favorable verdict when, as in this case, a legal defect has substantially eliminated the chance of an unfavorable one.”
The following quotation from the opinion indicates that the court considered the court below was justified in making the mistrial order by reason of manifest necessity:
“The varying circumstances that will justify a mistrial without giving rise to double jeopardy have frequently been generalized in the expression that a court has authority to discharge a jury ‘whenever in the court’s opinion there is manifest necessity for such act or the ends of public justice would otherwise be defeated, * * *.’ People v. Touhy, 361 Ill. 332, 344 , 197 N. E. 849, 856 ; People v. Simos, 345 Ill. 226, 231 , 178 N. E. 188, 190 ; People v. Peplos, 340 Ill. 27 , 172 N. E. 54 . These decisions hold that the ruling of the trial court is not subject to review in the absence of an abuse of discretion.”
See also on the same principle Brock v. North Carolina, 344 U. S. 424 ; Simmons v. United States, 142 U. S. *464 148 ; United States v. Cimino, 224 F. (2nd) 274; Scott v. United States, 202 F. (2nd) 354.
It is not necessary that the respondent consent to a mistrial in order to obviate the constitutional bar. A mistrial may be properly ordered either on the motion of the prosecuting attorney or by the court of its own motion, and over the opposition of the respondent. United States v. Gori, supra.
The question here is the application of the rule laid down in the Slorah and Perez cases. I feel that the action, of the presiding justice in declaring the mistrial was proper and justifiable under that rule. The basic issue in the instant case can be stated rather simply. Can the situation ever arise in which it would be completely unrealistic to expect a jury to heed an instruction to disregard certain evidence and put it out of mind in the course of their deliberations? If so, is this such a case? I would answer both questions in the affirmative. The court, in view of the evidence before him at the time, had admitted certain exhibits. The jury undoubtedly were under the impression that the exhibits were offered and admitted as tending to prove that they were the identical articles alleged to have been unlawfully received by the respondent. The qualification of certain previous testimony relating thereto, rendered the exhibits and some of the testimony inadmissible for such purpose. There was, however, ample admissible evidence in the case, if believed, without the exhibits, to justify a conviction for the crime charged. Not all of the evidence relating to the exhibits was inadmissible. Evidence concerning the exhibits was admissible for the purpose of proving value, without the actual admission of the exhibits in evidence. See Berney v. Dinsmore, 141 Mass. 42 , 5 N. E. 273 , 55 Am. Rep. 445 . Also, testimony relating to the exhibits was admissible for the purpose of assisting the jury in determining whether the description *465 of the property alleged to have been stolen and unlawfully received conformed with the description set forth in the indictment.
The presiding justice concluded, in my view correctly, that the evidence to be disregarded was so voluminous and so interwoven into the entire fabric of the case that it would be virtually impossible for any group of twelve citizens, untrained in the law, to sort out of a considerable body of evidence so much that under changed conditions must be eliminated from consideration. Justice is not furthered by a verdict which is the product of utter confusion in the minds of the jury. In the ordinary case evidence to be subtracted out of consideration is relatively isolated and easily separable. In such a case the assumption that the jury can heed an instruction to disregard is valid. But human capacity would seem to impose some reasonable limits on such an assumption.
The justice below was presented with a choice between two alternatives. He could, as the respondent requested, give the instruction to disregard the evidence. Was the decision to be his or the respondent’s? I suppose no one would suggest that by imposing as a condition of his waiver of his right to a mistrial the giving of an erroneous instruction as to the law, the respondent could thereby compel the giving of such an instruction. No more could the respondent, in my view, compel the giving of an instruction which the presiding justice, in the exercise of a sound discretion and for good reason, deemed to be hopelessly confusing and meaningless. If, on the other hand, he refused to give the requested instruction, the order of a mistrial was left as the only available means of protecting the respondent from the consequence of an unfair verdict. The danger to the respondent which only the presiding justice seems fully to have apprehended lay in the fact that there was ample evidence in the case entirely apart from the evi *466 dence to be disregarded to warrant a conviction. If trial of the case had continued and a verdict of guilty rendered, it could never have been known whether that verdict rested solely on legal evidence or resulted wholly or in part from the inability of the jury to immunize themselves from the influence of a substantial volume of evidence which they were suddenly instructed to disregard. The court was in a position, by the exercise of a sound discretion, to determine what decision ought to be made in the interest of justice in the troublesome situation that had arisen in the course of the trial. His statement explaining his action and giving his reasons therefor plainly indicates his concern that the jury, in the event that instructions were given, might not understand what testimony to regard and what to disregard. He also expressed misgivings that a fair trial could take place before the jury which had heard so much testimony that had become inadmissible. The court obviously felt that the ends of justice would be defeated if trial of the case continued. His action was not an arbitrary one. I see in the election of the justice below to order a mistrial no more than the exercise of a sound discretion, on which no valid claim of double jeopardy can be found. Gori v. United States (1961)— U. S. —. 81 S. Ct. 1523 , supra.
The exceptions should be overruled.
Mr. Justice Webber concurs in this opinión.