*564Dissenting Opinion by
Van der Voort, J.:In this case the appellant was tried by a jury and found guilty of selling drugs on November 15, 1973. This was a re-trial of the case. The first trial resulted in a hung jury. The appellant asks us to upset his conviction because the trial judge in the first trial declared a mistrial after the jury had deliberated over eleven hours, including time for meals, because they were, in his judgment, deadlocked. The appellant claims that he has been placed in double jeopardy and is entitled to discharge. I respectfully dissent from the ruling of the majority reversing the conviction and discharging the appellant.
This was indeed an uncomplex case. There was one indictment containing one count charging the appellant with one sale of methaqualone on April 6, 1973 in Sharpsville, Pennsylvania. Appellant defended by an alibi and there was one simple issue of credibility as between the under-cover agent who testified as to the sale to him by the appellant and the latter’s alibi witnesses. The total trial time was approximately four hours. The jury retired at 11:35 A.M. At 8:45 P.M., the jury summoned the tipstaff and informed him that they were unable to reach a decision. The tipstaff responded to them as follows:
“When they told me they were deadlocked, I told them Judge Acker had instructed me that we would be keeping them out for a considerable amount of time, to have due consideration, and that unless they absolutely insisted, I wouldn’t call him back just to have him consider that because they would be considering it anyway. In other words, they were to stay out.”1
At 10:46 P.M., the jury again summoned the tipstaff *565who reported back to the Judge who was holding a second conference in his chambers:
“The buzzer rang. I went in, and the foreman said, we’re hopelessly deadlocked. Please tell the Judge that we can’t reach an agreement.”
The trial judge felt that the jury was deadlocked and that out of manifest necessity he should and did declare a mistrial and discharged the jury at 10:55 P.M.
The majority of our Supreme Court in Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964) pointed out what the judge is faced with where a jury is unable to reach an agreement. If he discharges the jury the Court is faced with a double jeopardy challenge based on a claim that there was no manifest necessity to declare a mistrial. If on the other hand, he requires the jury to continue deliberating after it has announced its inability to reach an agreement the court is faced with a challenge in the event of a guilty verdict on the grounds that the verdict was coerced.
The majority of the Court refers to the case of Commonwealth v. Monte, 459 Pa. , 329 A.2d 836 (1974) where our Supreme Court held that the dismissal of a jury after 6% hours of deliberation was proper. The majority distinguishes the Monte case on the grounds that in it the Court inquired personally of the foreman of the jury whether or not the jury could reach a verdict, while in the instant case, the Judge acted upon what the jury foreman told him through his tipstaff.2 While it may be preferable for the trial judge to personally interrogate the jury as to its ability or inability to reach a verdict, to hold that a trial judge has abused his discretion in following a valid but different procedure, i.e., by acting upon the information which the foreman of the *566jury has sent to him through his tipstaff and upon other factors present in this case such as the brevity of the case, the single charge against the accused, the simplicity of the issue, the length of time of deliberation and the lateness of the hour thereby setting free a convicted drug peddler is to warp and torture the judicial system into an ineffective instrument for upholding the law.
I would affirm the judgment of sentence of the trial court.
Watkins, P.J., joins in this dissenting opinion.
. The trial judge held a conference among himself and counsel for both parties and counsel for defendant announced he took no exception to what the tipstaff had said.
. The tipstaff is an officer of the Court and is sworn to faithfully perform his duties; there is no claim here that the tipstaff did not accurately inform the Court of what the jury foreman said to him.