(concurring in part, dissenting in part):
As Justice Douglas aptly pointed out in his dissenting opinion in Gori v. United States, 367 U.S. 364, 370, 81 S.Ct. 1523, 1527, 6 L.Ed.2d 901 (1961), “the place one comes out, when faced with the problem of this case [double jeopardy], depends largely on where one starts.”
My starting point, derived from a literal reading of the Constitution and the latest Supreme Court pronouncement on this precise issue, is that any premature termination of a prosecution, neither sought nor acquiesced in by the defendant, constitutes a bar to retrial unless the reason for aborting the proceeding falls squarely within a narrowly defined exception to the Fifth Amendment’s prohibition of double jeopardy. See Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Therein lies my disagreement with the majority opinion in this case which apparently assumes that “absent an unfair purpose” a halting of a trial is permissible and a retrial following this eventuality is not prohibited by the Fifth Amendment.
The Downum case, supra, it seems to me, governs our situation exactly and forbids the majority’s approach. In that case, after the jury had been impaneled and jeopardy had therefore attached, the trial court, upon the Government’s motion, discharged the jury because the prosecution’s star witness was missing. The defendant was tried before another jury two days later and convicted. Holding that there was no “imperious necessity” for the discharge and that the second trial was voided by the double jeopardy clause, the Court stated, “We resolve any doubt ‘in favor of the liberty of the citizen, rather than exercise what would be an unlimited, uncertain and arbitrary judicial discretion.’ ” Downum, supra at 738, 83 S.Ct. at 1035.
Whether the facts of the instant case presented a “manifest” or “imperious necessity” — which, since it was laid down by Justice Story in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824), has been the constitutional test for permitting a retrial following an aborted prosecution — raises such a doubt. Are we not compelled then to resolve it in Smith’s favor and order his release rather than subject him to the rigors of yet another trial?
“Manifest necessity” permitting a trial court to exercise discretion to terminate *425a trial prematurely exists “only in very extraordinary and striking circumstances.” United States v. Coolidge, 25 Fed.Cas.No.14,858, pp. 622, 623 (D. Mass.1815). It is manifestly necessary to curtail a trial when a jury is unable to reach a verdict, United States v, ^orez,; supra; when a juror’s bias surfaces, Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1894); when a participant in the proceedings dies or becomes ill, In re Earle, 316 Mich. 295, 25 N.W.2d 202 (1946); or when an advancing army makes the continuation of a trial inadvisable, Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949). But not only was it not manir festly necessary to declare a mistrial in Smith’s case, it was not necessary at all or even judicious to do so.
The facts of this case are simple. After the Government had presented its entire direct case against Smith and his alleged co-conspirators,1 the court sua sponte declared a mistrial as to Smith because certain jurors had read a newspaper article about the criminal past of another of the defendants. The important fact is that Smith was being tried not to the jury but to the judge, who specifically noted that the article would have no effect on his own judgment. It is, of course, conceded by the majority that Smith’s counsel effectively avoided waiving his double jeopardy objection by calling to the court’s attention immediately following the declaration of mistrial that the ruling was wholly at the instance of the court.
While I agree that it was proper for the court to declare a mistrial, upon the jury defendants’ motion, as to those defendants who were being tried by the jury, I see no reason, compelling or otherwise, for pursuing a similar course with regard to Smith. The court should have allowed Smith to present at that time any defenses he may have had and concluded Smith’s trial. If the court were concerned that its decision might have a prejudicial effect on the jury defendants’ later trial, the court could have taken its decision under advisement until after the termination of the jury trial. It is not an unknown practice in a common trial for a judge, in his discretion, to defer announcing judgment in the case of defendants who have waived jury trial, so as to avoid influencing the jury’s verdict in the cases of the remaining defendants. Since this path was readily available, Smith’s trial did not present the “very extraordinary and striking circumstances” which the Supreme Court demands in order to declare a mistrial that will not serve as a bar to a second prosecution for the same offense.
The relatively innocent circumstances of the Downum case indicate that the oppression, harassment, expense and inconvenience, which the double jeopardy clause seeks to avoid by forbidding re-prosecution, need not be present in the particular case for the Fifth Amendment to be applicable. See Judge Leven-thal’s concurrence in Carsey v. United States, 392 F.2d 810 (D.C.Cir.1967). Nevertheless it is pertinent to observe that during the Government’s second bite at the apple, the prosecution did in fact present many more witnesses than were called at the first trial. This attempt by the Government, “with all its resources and power,” 2 to make a stronger showing upon reprosecution is precisely what the Fifth Amendment interdicts.
Even if the testimony at the second trial were identical to that in the first, the conclusion that this constituted double jeopardy would still follow. The Constitution declares unqualifiedly that no person shall “be twice put in jeopardy” for the same offense. It provides no exceptions, and the Supreme Court has ruled that the exceptions which the *426exigencies demand must be severely confined.
The Gori, supra, and Tateo3 cases, relied upon in the majority opinion, do not detract from Downum’s viability and its strong presumption in favor of a defendant faced with a second prosecution. Nor do those decisions support the majority opinion in this case. Gori, decided two years before Downum, held that a second trial was permissible when the first trial was prematurely ended because of the court’s solicitous, perhaps oversolicitous, regard for the defendant’s rights. That, of course, was not what happened here, since the mistrial was not declared for Smith’s benefit; indeed, his views and those of his counsel were specifically and intentionally disregarded. The court, after momentarily acknowledging the presence of the non-jury defendants, precipitously announced, “I am not even going to ask you. I am going to declare a mistrial * *
Tateo, as characterized by the majority of the Supreme Court, involved a situation wholly dissimilar to the one in question here. In Tateo, there was no prematurely terminated trial, but a judgment entered upon the defendant’s coerced plea of guilty. Since that was an after-judgment situation, the Court held that upon vacating the erroneously entered judgment, the defendant could be made to stand trial again. That case is more analogous to a reversal of a verdict and judgment based upon tainted evidence and a remand for a new trial, at the instance of the defendant, than it is to a trial truncated by the court without justification and without the defendant’s acquiescence.
Although I concur in the majority’s holding that the judgment must be reversed because of improperly considered evidence, I do not agree with the court’s ultimate disposition of the case, permitting a retrial. After reversing, I would enter an order dismissing the charges against Smith on the ground that the double jeopardy clause of the Fifth Amendment prohibits renewal of the proceedings after the trial court has unnecessarily and improvidently declared a mistrial.
. Jeopardy attached as to Smith when the first witness was presented to the court. See, e. g., Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436 (1939).
. Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
. United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964).