I concur, primarily because the demand of subdivision 2 of section 428 of the Code of Criminal Procedure here applicable was not fulfilled by the court. This section requires that the jury “ shall declare themselves unable to agree upon a verdict. ’ ’ This language, fixed by the Legislature, has rigidity, and has been declared not changeable by the courts. (People ex rel. Stabile v. Warden of City Prison, 202 N. Y. 138; People ex rel. Luetje v. Ketcham, 45 Misc 2d 802 [Sup. Ct., Nassau County, 1965].) If the statute under review was partly couched in an “ inadvertent expression, ’ ’ as intimated by the dissent, it is not the prerogative of the courts ‘ ‘ to correct supposed errors, omissions or defects in legislation.” (Triborough Bridge & Tunnel Auth. v. Crystal & Son, 2 A D 2d 37, 41, affd. 2 N Y 2d 961, 963). Only by legislative amendment, such as is now to be found in CPL 310.60 (subd. 1, par. [a]) not here applicable, which replaces section 428 of the code, could the required declaration of the jury be eliminated.
Further, I believe a second trial, following an improperly declared mistrial, runs afoul of the “ double jeopardy ” prohibition. The second trial forces the defendant to run the gauntlet again, but at a time when all the advantage has passed to the prosecutor, as he (the prosecutor) will be indubitably more prescient the second time around. (See A. C. Stream, Double Jeopardy Clause of the Fifth Amendment — A Case for Acquittal by Hung Jury, N. Y. L. J., Oct. 2,1970, p. 1.) And it may be noted that in a recent case, the Supreme Court of the United States upheld the ruling of the United States District Court of Utah that a defendant had been placed in double jeopardy by a second trial for the same offense held following a declaration of a mistrial by the Trial Judge. (United States v. Jorn, 400 U. S. 470.) Speaking for the court, Justice Harlan said (p. 483):
*38“ Reprosecution after a mistrial has unnecessarily been declared by the trial court obviously subjects the defendant to the same personal strain and insecurity regardless of the motivation underlying the trial judge’s action.”