dissenting:
In this case, after the prosecution had rested and after the defense had called and finished with the first witness, the court recessed for the day. Upon the following day, the State’s Attorney brought to the court’s attention that on the day before, after the first defense witness testified, one of the jurors had spoken with the. witness in the corridor. Following a conference between the court and counsel, the court determined to question the juror privately without the presence of counsel. During that conference, the juror related that the conference in the corridor with the witness was merely an exchange of pleasantries and she indicated a long standing acquaintance with the witness.
After the exploration as to the conversation between the juror and the witness, tibe juror then initiated a conversation as to whether she could be excused from the jury. She discussed an illness of her husband and the fact that she had a handicapped daughter at home. She also mentioned that she had read an article concerning the case. Upon inquiry of the court as to whether she had her mind made up on the case, she answered, “Well, probably so."
Thereafter, contrary to the wish of defense counsel, and in accordance with the indicated preference of the State’s Attorney, the trial judge declared a mistrial and discharged the jury. It is clear from the record that the mistrial was declared not because of the conversation between the juror and the witness, but because of ancillary matters discovered during the course of the inquiry as to that conversation. In substance, there was a second voir dire examination.
This case in my opinion is governed by the rules announced in United States v. Jorn (1971), 400 U.S. 470, 27 L.Ed.2d 543, 91 S.Ct. 547. In the Jorn case, the court cited and quoted from United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165, and concluded that a jury should be discharged from giving any verdict only upon a showing of manifest necessity and as required by the ends of justice. The authority of the trial judge to act ought to be used with tibe greatest caution only under urgent circumstances and for very plain and obvious causes.
I am not persuaded that the case of Illinois v. Somerville, cited in the majority opinion, so “erodes” the holding in Jorn so as to permit of affirmance here.
The concluding paragraph in Somerville reads as follows:
“The determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be lightly undertaken, since the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one. (United States v. Jorn, supra.) Nor will the lack of demonstrable additional prejudice preclude the defendant’s invocation of the double jeopardy bar in tibe absence of some important countervailing interest of proper judicial administration. Ibid. But where the declaration of a mistrial implements a reasonable state policy and aborts a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties, the defendant’s interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice. Wade v. Hunter, supra.” 410 U.S. at 471.
This record does not suggest the existence of any factor that would have permitted a verdict by the jury as originally impaneled to be upset at will by either of the parties. In the absence of such factor, the defendant’s interest in proceeding to verdict is not outweighed by the competing and equally legitimate demand for public justice.