concurring.
I join in the plurality opinion and in the judgment of the Court not without some reluctance, however, since the case represents a plain frustration. of the right to *488have this case tried, .attributable solely to the conduct of the trial judge, If the accused had brought about the erroneous mistrial ruling we would have a different case, but this record shows nothing to take appellee’s claims outside the classic mold of being twice placed in jeopardy for the same offense.
Mr. Justice Black and Mr. Justice Brennan believe that the Court lacks jurisdiction over this appeal under 18. U. S. C. § 3731 because the action of the trial judge amounted to an acquittal of appellee and therefore there was no discretion left, to the trial judge to put appellee again in jeopardy. However, in view of a decision by a majority of the Court to reach the merits, they join the judgment of the Court.