(concurring) :
I join in Judge Edgerton’s opinion for the court. It lucidly sets forth the governing principles and their sound application to the facts of this case. This concurrence is appended to help *813avoid possible misunderstanding of our views concerning matters noted in the dissent. I hope its length will not alloy the force of the court’s opinion.
I propose to draw further on the transcript to help dissipate any impression either that the court’s ruling rests on a technicality, or that it places a premium on defense chicanery.
1. It scants the solemn trust of the courts to say that a case turns on technicalities when what is at stake is a fundamental secured by the Bill of Rights. The Fifth Amendment solemnly assures all of us that no person “shall be subject for the same offense to be twice put in jeopardy of life or limb.”
The prohibition of the. Double Jeopardy Clause is “not against being twice punished, but against being twice put in jeopardy.”1 It warns that “the State with all its, resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” 2
It is not necessary to show to what extent a particular defendant has been subjected to the evils that the Double Jeopardy Clause seeks to subdue. Yet it is interesting to note that this appellant has been confronted not only with the anxiety and ordeal that are virtually axiomatic for all retried defendants, but also with the need for proceeding in forma pauperis, presumably because of depletion of the funds that permitted him to retain counsel at the outset. By the time the mistrial was declared, appellant had been in jail more than nine months and had lived through 18 days of trial, spread over three proceedings and more than a year.
Appellant observed, among other things, how the Government witnesses came to drop from their testimony impressions favorable to defendant. Thus a key prosecution witness, the last person to see appellant and the deceased together, who began by testifying that they had acted that evening like newlyweds on a honeymoon, without an unfriendly word spoken, ended up by saying for the first time in four trials that the words between them had been “firm,” and possibly harsh and “cross.” 3
*814We also note that the police officer who readily acquiesced in the two “hung jury” trials that appellant was “hysterical,” later withheld that characterization.4 This shift, though less dramatic, was by no means inconsequential in view of the significance of appellant’s condition at the time he made a statement inconsistent with what he later told another officer.
In Downum v. United States,5 the Supreme Court not only set forth the principle that the Double Jeopardy Clause assures the defendant a verdict from the jury that has been convened unless “imperious necessity” intervenes, but expressly ruled that this basic right must be held inviolate even though its infringement was due only to a prosecutor’s mishap in announcing ready before assuring that his key witnesses were available, and even though the trial was delayed only two days.
There is no basis for supposing that the Supreme Court would trim this imperious necessity doctrine and permit the state to ask for another trial because the prosecutor’s mishap lay in asking improvidently for a mistrial and the trial judge acquiesced.
Such mishaps may provide an occasional asylum for the guilty. However, the basic approach — to keep the Double Jeopardy Clause firm, and resist erosion by exceptions that seem reasonable but are not necessary — is one that shelters the innocent against the bitter effects of successive prosecutions. Acquittal itself may be of little succor to an accused if he and his family are exhausted by worry and financially ruined in the process of trying the case again and again. And the retrial process may tilt a doubtful case toward conviction.
2. The broad principles of the Double Jeopardy Clause do not provide a specific answer to the question whether the judge properly ordered a mistrial at appellant’s prior trial. But they do make it clear that granting a mistrial over the defendant’s objection is a decision that should be approached with caution and sensitivity to the values that lie in the balance.
Here the decision that another trial was required followed a brief presentation, perhaps 10 minutes in duration, of a motion made orally the day after summation to the jury. The record does not show what notice, if any, was given to defense counsel that day of the prosecution’s intent to seek a mistrial. The prosecutor began by saying the matter “has given me a lot of trouble. I thought about it last night and thought about it.” If a transcript had been first obtained, it would have recalled to the judge that on the previous day not *815only had he noted that any possible prejudice could be cured by instruction, but also that defense counsel had not yet said that there had been a hung jury. This was likely due to the fact that he was stopped just in time, but he was stopped in time, and it was the prosecutor’s rebuttal that contained the only reference to a hung jury.
In resisting the mistrial motion defense counsel reiterated that he had understood the trial judge to grant his request for an instruction that two earlier juries had been unable to agree. The trial judge was emphatic that this request had been denied. The transcript discloses:6
The Court: I don’t advise juries there have been prior trials. They have no right to know that because it could influence them. That is why I denied it.
Defense Counsel: In what sense could it influence them, Your Honor?
The Court: It is the way that [the prosecutor] stated. There have been two hung juries before; two juries that couldn’t agree.
Defense Counsel: Does Your Hon- or recall the conversation that we had on it in Chambers?
The Court: Yes, I recall the conversation, but I didn’t grant the prayer, and I thought everyone understood, individually.
Defense Counsel: My recollection was that you said the first one was granted and there was nothing wrong with that, and then you went to the second or third, and then [the prosecutor]
The Court: No, no. I don’t know whether I went over them twice or not, but I know my final action was that it was denied. I hate to try this case all over again, but I can see no alternative but to grant the motion.
Bring the jury in.
The Marshal: Yes, sir.
Defense Counsel: Would you hear a motion from me as to the mistrial?
The Court: It was granted. Now, what do you want to say?
Defense Counsel: Well—
The Court: Bring the jury in. Defense Counsel: It is the matter that I object.
The Court: Oh, certainly. Your objection is noted.
The opinion of this court grants no sharp-practice license to defense attorneys. As the trial court has the best vantage point from which to gauge the prejudicial impact of defense conduct, his decision as to that fact, where made after deliberation and with sensitivity to the competing interests involved, will be entitled to great deference. Cf. Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961).
Under the doctrine of necessity, misbehavior by defense counsel that intrudes on a fair trial permits a mistrial without prejudice to a retrial. But there is no evidence whatever of such misbehavior or sharp practice here. Appointed counsel believed that the trial judge had granted his request for an instruction advising the jury that there had been two prior hung juries. This court is not saying that defense counsel was on sound ground, and the course outlined in the last paragraph of its opinion does not provide what defense counsel sodght. It can hardly be said, however, that the defense request was so preposterous as to negative good faith.
On the voir dire defense counsel was concerned because reference had been made to the prior trial. He sought to assure that his client would not be prejudiced by a mistaken — but possible, or perhaps even probable — jury inference that the mistrial reflected a conviction that had been reversed on appeal.7 His *816voiced concern that the jury might further think this was “a certain type of case” (see note 7), presumably was an effort to grapple with the problem that the jury might further infer there had been a confession that was held legally impermissible — a concern given added bite by the fact that this court en banc had recently issued Second Killough,8 a decision attended by extensive press coverage. In any event, the judge’s subsequent remark at a bench conference gave defense counsel reason to believe that a clarifying charge would be given:
Defense Counsel: I think we had better call to the Court’s attention also that [prospective juror] referred to the previous trial in his last—
Court: That has already been brought out.
Defense Counsel: I have. Your Honor will explain that to the jury?
Court: No, unless you want me to. That is just high-lighting it. The juror said her husband sat on a prior trial. I don’t think it makes any difference, but I will be glad to tell them.
Defense Counsel: The only thing is I don’t want to look like he has been convicted and on appeal he has beaten the rap. This is the thing—
Court: I think the proper time to to take that up is at the charge.
These trial references provide a context both for defense counsel’s request and his mistake in supposing the request had been granted. This record reflects the good faith of appointed defense counsel — a former prosecutor — in attempting to protect his client, and provides no basis for any characterization of his conduct before the jury as “questionable.” This court’s opinion in no way condones chicanery by defense counsel. It places a premium on care and deliberation before a prosecution’s motion for mistrial is either made or granted.
. United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896).
. Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).
. First trial (Tr. vol. 1, p. 88):
Q. When you left the tavern, there had been no harsh word, no unfriendly word spoken between this couple?
A. Not to my knowledge, no, sir.
Q. They acted as the newlyweds which they were?
A. Yes, sir.
Second trial (p. 11):
Q. * * * what was their relationship?
A. As man and wife.
Q. Were they friendly?
A. Yes, sir.
Q. Were they happy?
A. Apparently so, appeared to be.
Q. And their conversation was of that nature?
A. Light, yes, sir.
Q. Light, as honeymooners?
Court: As what?
Defense Counsel: As honeymooners.
Prosecutor: Now what characterization of that, if your honor please.
Court: Was their relationship friendly, as that you would expect of a man and wife under favorable circumstances, sir?
A. Yes, sir.
Q. Did they fight or quarrel, at any time? ’
A. No, sir.
Third trial. (Tr. p. 49):
Q. There was no harshness between the two that evening, was there?
A. Not to my knowledge, no, sir.
Fourth trial (Tr. 47, 60):
Q. Isn’t it a fact that Mr. and Mrs. Carsey at all times acted like honeymooners during the course of your presence with them?
A. I don’t know how honeymooners act all the time. They acted as man and wife.
*814* * *
Q. Was there a harsh word spoken between them while you were with them?
A. That would depend on harsh, once again.
Q. Was there a cross word spoken between them?
A. There were firm words spoken in the course of the conversation. I don’t know whether you would call them harsh or cross.
. First trial. (Tr. vol. 2, p. 49):
Q. When you first saw Mr. Carsey, he was seated in the Volkswagen?
A. Yes, sir.
Q. What was his condition?
A. Well, he had his head laying over his arms on the steering wheel.
Q. And he was sobbing?
A. When I asked him what the trouble was, he started sobbing.
Q. Would you say he was hysterical?
A. He appeared to be at first, yes, sir.
Second trial (Tr. 119):
Q. Now, would you say that in the first statement, or when you first came upon Mr. Carsey, that he was in a hysterical condition?
A. Yes, sir, he was crying and sobbing.
Third trial. (Tr. 158):
Q. When you first came up to him he was in a hysterical condition?
A. He was crying and sobbing.
Fourth trial. (Tr. 100):
Q. Would you say he was hysterical?
A. He was sobbing and crying.
. 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).
. Tr. 4-5, February 19, 1968.
. See Tr. 4-4, February 14, 1966.
Defense Counsel: Your Honor, the statement of the one prospective juror *816that her husband had served on the case may have several ramifications.
The Court : I will excuse that juror.
Prosecutor: You have excused her.
The Court: What is the trouble?
Defense Counsel: I mean with respect to the fact that it is not in the record and before the prospective jury that there has been a previous trial in this case, and I think from the defendant’s point of view it might well serve the best interests of both parties if Your Honor were to give something of the background of the case. In other words, there have been previous trials that a jury has never been able to agree.
The Court: You don’t want to go into that, do you?
Defense Counsel: There could be some prejudice to the defendant if this was thought to be a certain type of case.
. Killough v. United States, 119 U.S.App.D.C. 10, 336 F.2d 929 (1964). Suppression of a confession led to the discharge of an admitted murderer.