dissenting.
The majority opinion addresses with much authority the issues presented in the instant case and I find myself in substantial agreement with the analysis herein. However, because I find the ultimate conclusion unacceptable, I dissent.
A clear distinction lies between mistrials granted at the request of the defendant, or with his consent, and those declared by the court sua sponte, with respect to whether the double jeopardy clause bars reprosecution. United States v. Dinitz, 424 U.S. 600, 606-08, 96 S.Ct. 1075, 1078-80, 47 L.Ed.2d 267 (1976). In the absence of a motion or consent by the defendant, the Supreme Court has dictated that there can be no new trial unless there was a “manifest necessity” for the mistrial or “the ends of public justice would otherwise be defeated.” United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971), quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). This doctrine of “manifest necessity” recognizes the significant interest of the defendant in deciding whether, “once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” United States v. Jorn, 400 U.S. at 486, 91 S.Ct. at 557.
“The determination whether ‘manifest necessity’ exists for the declaration of a mistrial is, of course, an inquiry particularly suited to case-by-case analysis, and not hospitable to generalities.” United States v. Spinella, 506 F.2d 426, 432 (5th Cir.), cert. denied, 423 U.S. 917, 96 S.Ct. 227, 46 L.Ed.2d 147 (1975).
United States v. Evers, 569 F.2d 876, 878 (5th Cir. 1978).
It cannot be gainsaid that witness Cooper’s attorney’s remark to Cooper in open court and in the presence of the jury was not only inappropriate but also prejudicial. Nonetheless, if it was true that (1) appellant’s attorney requested a mistrial, (2) the trial court granted the mistrial in chambers, (3) appellant was present in chambers when the mistrial was granted, (4) the jury was unaware of the trial court’s ruling, and (5) either appellant or his attorney made known to the trial court, before the trial *689court informed the jury of the declaration of a mistrial, appellant’s request that the trial court vacate its ruling and proceed with the trial, then the trial court was duty bound to recognize and grant appellant’s request unless there was manifest necessity for a mistrial or the ends of public justice required otherwise. E. g., United States v. Rich, 589 F.2d 1025, 1028 (10th Cir. 1978); United States v. Bobo, 586 F.2d 355, 362 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1546, 59 L.Ed.2d 795 (1979); United States v. Evers, supra, 569 F.2d at 879 (reprosecution barred where there was no “manifest necessity” for mistrial within the rule that a declaration of mistrial over objection of defendant requires justification of manifest necessity); United States v. Martin, 561 F.2d 135 (8th Cir. 1977).
I do not find Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), cited by the majority, apposite. Henry, cited with approval in Brookhart v. Janis, 384 U.S. 1, 7, 86 S.Ct. 1245, 1248,16 L.Ed.2d 314 (1966), involved a deliberate by-pass of counsel with the contemporaneous objection rule as a part of trial strategy. The present case has nothing to do with trial strategy, but involves whether or not a defendant can waive or give up a supposed advantage, i. e., the declaration of a mistrial. I also distinguish those double jeopardy cases which typically deal with the illness of the trial judge, e. g., United States v. Lynch, 598 F.2d 132, 135 (D.C.Cir. 1978) (per curiam) (cases cited therein), cert. denied, 440 U.S. 939, 99 S.Ct. 1287, 59 L.Ed.2d 498 (1979), or the disability of a juror, e. g., United States v. Potash, 118 F.2d 54 (2d Cir. 1941), or bias of a juror, e. g., Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894), or a distraught witness, e. g., United States v. Walker, 557 F.2d 741 (10th Cir. 1977), or involved a defective indictment, Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Such cases are representative of “those instances where ‘a defendant’s valued right to have his trial completed by a particular tribunal must ... be subordinated to the public’s interest in fair trials designed to end in just judgments.’ ” United States v. Bobo, supra, 586 F.2d at 365, citing Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). Similarly, the double jeopardy clause does not bar reprose-cution “after a conviction is reversed on appeal, or on collateral attack. Likewise, a second prosecution is not prohibited when the jury is dismissed because they cannot reach a verdict, because of the disqualification of a juror, because of a ‘mere irregularity of procedure,’ or because of a tactical necessity in wartime.” United States v. Starling, 571 F.2d 934, 938 (5th Cir. 1978) (citations omitted).
In my opinion the trial court did not exercise its “sound discretion” in declaring a mistrial in the present case, especially in light of the “high degree” of manifest necessity required before the declaration of a mistrial is appropriate. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). Further, I cannot agree that, under the circumstances in the present case, if true, the trial court can or should become so paternalistic as to deny appellant his “valued right to have his trial completed by [that] particular tribunal,” Wade v. Hunter, supra, 336 U.S. at 689, 69 S.Ct. at 837. Appellant argued that he informed his attorney, before the trial court notified the jury of the declaration of a mistrial, that he wanted to proceed with the trial. In effect, appellant stated that “he wished to have his fate decided by the jury first impanelled and to avoid ‘the anxiety and heartbreak of [and delay in awaiting] another trial,’ the very concern with which the double jeopardy clause deals.” United States v. Evers, supra, 569 F.2d at 880, citing Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). I am reluctant, on this record, to conclude that appellant “waived his constitutional right not to be twice placed in jeopardy for the same offense unless he did so knowingly and intelligently.” United States v. Rich, 589 F.2d 1025, 1032-33 (10th Cir. 1978), citing Cox v. Kansas, 456 F.2d 1279 (10th Cir. 1972). Contra, United States v. Dinitz, supra, 424 U.S. at 609 n.11, 96 S.Ct. at 1080; United States v. Bobo, supra, 586 F.2d at *690364-65; United States v. Jamison, 164 U.S. App.D.C. 300, 306, 505 F.2d 407, 413 (1974).
Assuming appellant’s statement of the facts is accurate, I would find that the trial court’s declaration of a mistrial was not justified by manifest necessity or required to serve the ends of public justice and, accordingly, would hold that appellant’s second trial was barred by the double jeopardy clause. However, inasmuch as the record in the present case is unclear about what happened and when, compare Arizona v. Washington, supra, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717, a hearing to determine whether appellant’s request to vacate the trial court’s order granting a mistrial was made knowingly and intelligently would have been appropriate. Therefore, I would retain jurisdiction of this appeal and would remand to the district court for further findings, in particular whether, before the trial court declared a mistrial in open court, the trial court knew that appellant wanted to proceed with the trial and opposed his counsel’s motion for a mistrial.