Petitioner moves pursuant to article 78 for an order prohibiting respondents from trying him on indictment 6166/1969, or for any offense charged therein, on the ground that any such trial would amount to subjecting petitioner to being twice put in jeopardy for the same offense.
Petitioner appeared for trial on the said indictment on October 31, 1972, in Part 42 of the Supreme Court. He waived a jury and the trial proceeded before the court and testimony was taken. On November 3, petitioner, who was the defendant and will hereinafter be referred to as such, moved through his counsel for a mistrial on the ground that the District Attorney had withheld exculpatory evidence. There followed a long discussion in which defendant’s counsel was challenged to specify the evidence he claimed to be exculpatory. It finally developed that it consisted of statements of several persons to the effect that defendant had not been present at the restaurant at the time the crime charged was alleged to have been committed. The District Attorney disclaimed the possession of any written material executed or signed by any such person, but admitted having heard of statements to that effect. The discussion was not specific as to what the defense claimed existed or as to exactly what material the prosecution possessed. November 3 was a Friday and the court ruled that the District Attorney should give the defense a list of the names and addresses of all persons who had made such statements on the following Monday, and that the court would hear the defendant on what preparation he would require at that time. A list was submitted by the District Attorney and the parties appeared on November 6. At that time the record does not disclose any immediate ruling on the motion for a mistrial but it was apparently assumed by all that the trial would proceed. However, taking of testimony did not resume and there was further discussion as to what the District Attorney should produce. Unable to procure a satisfactory solution to what he deemed an impasse, and fearful that defendant’s rights could not be protected, the court granted defendant’s motion for a mistrial. The District Attorney noted an exception. Defense counsel, who had taken no part in this last discussion, then announced that he joined in the objection and was willing to. proceed. The court adhered to his decision and set a date for a new trial.
We conclude from the record that at the time the court granted the motion fof a mistrial the defendant’s motion had not been determined or withdrawn. In fact no definitive ruling prior to that time had been announced, and it was not until after *161announcement that the defendant indicated that he no longer desired the exculpatory material. It was not only the province of the court, but his duty, to rule on the application. After the ruling it was discretionary with him whether to allow a withdrawal. We are not concerned on this application whether this discretion was exercised as well as it might have been under the circumstances.
Having sought the relief of a mistrial the defendant cannot claim double jeopardy if that relief is granted, whether properly or improperly. But even if it be assumed that there was no viable motion at the time the mistrial was granted, it does not follow that a new trial on the indictment is altogether foreclosed. “The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put •to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed.” (Wade v. Hunter, 336 U. S. 684, 688-689.) Whenever the ends of justice might otherwise be defeated it is the duty of the Trial Judge to declare a mistrial. It was early recognized that it was impossible to list all the circuihstances which would warrant such action but, if the decision rests on a sound discretion exercised with care and caution, the responsibility is that of the Trial Judge (United States v. Perez, 9 Wheat. [22 U. S.] 579). Even over the objection of the defendant, the Trial Judge, for any reason he deems compelling, may declare a mistrial and the defense of double jeopardy is unavailing (Simmons v. United States, 142 U. S. 148). Even where the Trial Judge is over assiduous and his action premature, double jeopardy will not result (Gori v. United States, 367 U. S. 364). And this has been held even where the record does not clearly reveal the motivation of the Trial Judge in declaring the mistrial (Gori v. United States, supra, p. 367).
The application should be denied.