holding there was no manifest necessity for mistrial where the *719 trial court granted mistrial "without first asking the jury if they had reached a verdict on the greater offense"
How later courts described this case
- holding there was no manifest necessity for mistrial where the *719 trial court granted mistrial "without first asking the jury if they had reached a verdict on the greater offense"
- noting that the "ends of public justice" would not have been defeated "by simply asking the jury if they had reached a verdict on the [greater offense]"
- where jury considered manslaughter and lesser-included offense of negligent homicide, hung jury not manifest necessity requiring mistrial before inquiring whether jury had reached verdict on greater offense of manslaughter
- instruction “not to consider the lesser offense unless it first considered the greater offense of manslaughter and found the defendant not guilty”
Written by the judges who cited it.
The opinion
Bois, J.,
dissenting: I disagree with that part of the decision which reverses the trial court in its declaration of a mistrial because of the jury’s inability to reach a verdict.
The law is clear that every time a defendant is put to trial before a competent jury, he is not entitled to go free if the trial ends in a mistrial. “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. (Citations omitted.) It is also clear that ‘[t]his Court has long favored the rule of discretion in the trial judge . . .’ and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion.” Gori v. United States, 367 U.S. 364, 368 (1961).
In State v. Donovan, 120 N.H. 603 , 419 A.2d 1102 (1980), we recently reaffirmed our faith in our trial court’s exercise of sound discretion. Accordingly, I can see no reason why, under the circumstances in this case, we should depart from our holding therein. To do so may inhibit the conscientious exercise of its judgment in finding that there is manifest necessity for the act, or that the ends of justice would otherwise be defeated.