(dissenting)—The crucial issue in this case in my judgment is not whether there was any “necessity” for the trial court to declare a mistrial in the original proceeding, but whether the trial court abused its discretion by concluding that the situation before it merited an order of mistrial. In other words, the issue, as phrased by the majority, is too narrow. It fails to recognize the possibility of an exercise of reasonable discretion in the matter by the trial court.
In the case of State v. Kinghorn (1909), 56 Wash. 131, 105 Pac. 234, a jury was impaneled and sworn and the prosecuting witness called to the stand. After preliminary questions were asked, the defendant moved to dismiss the case on the ground that he had not been properly arraigned. The motion was denied; the defendant was arraigned by order of the court, and a plea of not guilty was entered. On the motion of the state the jury was discharged with the defendant reserving an exception. A new jury was *889impaneled and sworn. Thereupon, the defendant pleaded former jeopardy. The plea was denied, and the defendant was convicted. On appeal it was held that the defendant had been placed in jeopardy during the few moments he spent before the first jury, and for that reason the conviction was reversed and the charge dismissed. The discharge of the jury in the original action without consent of the defendant had the same effect as an acquittal.
The similarities to the instant case are obvious. The trial, for all practical purposes, had not proceeded beyond impaneling the jury and the discharge of the original jury was allowed over the resistance of the defendant. Although the opinion in Kinghorn did not use the word “necessity,” the meaning or reasoning implicit in the term was applied as evidenced by this discussion from the case:
“We next inquire whether there was good cause for discharging the jury. Had anything then occurred or been omitted which would have rendered a judgment erroneous on a verdict of guilty? We think not. When the appellant had been arraigned and pleaded not guilty, an issue was joined and the trial should have proceeded. ... In State v. Straub, 16 Wash. 111, 47 Pac. 227, we held that the failure to plead in a capital case could not be raised for the first time on appeal; that the omission was technical, and did not affect any substantial right of the accused. Applying the logic of that case to the case at bar, it will at once appear that, when the plea was entered, the irregularity was cured, and that the trial should have proceeded in an orderly way before the jury then impaneled.”
The Kinghorn case is so strikingly similar to the instant case as to be controlling and authoritative for the majority’s position herein, except for one difficulty. The Kinghorn case was overruled by State v. Brunn (1945), 22 Wn. (2d) 120, 154 P. (2d) 826, 157 A. L. R 1049.
The historical basis of the right of a criminal defendant to have his case determined by the jury originally impaneled and sworn to try his case was recognized in State v. Brunn, supra, as follows:
“There was a period in England when many of the judges apparently considered it their judicial duty to obtain convictions in all criminal cases which came before them for *890trial. To that end, if it appeared during trial that the jury was not likely to convict, it became the practice to discharge that jury and impanel another, and, in some cases, a third or fourth, if necessary. The tyranny and injustice of such a procedure are obvious, but many times more apparent when it is remembered that in those days there were upwards of two hundred statutory crimes punishable with death, and a decision in the trial court was absolutely final. The defendant had no appeal. The rule that a jury could not be discharged without the defendant’s consent grew up as a counter weight to that pernicious practice.”
It can be said realistically, that the double jeopardy rule was incorporated in our jurisprudence to meet a specific abuse of judicial authority which no longer persists. See State v. Stacy (1953), 43 Wn. (2d) 358, 261 P. (2d) 400.
The Brunn case emphasized that there must be a manifest necessity for the discharge of the jury originally impaneled to hear and try a cause, and that the courts are to determine in their discretion whether under all the circumstances of the case such necessity exists.
The reasoning of the Brunn case finds support in Gori v. United States (1961), 367 U. S. 364, 6 L. Ed. (2d) 901, 81 S. Ct. 1523,9 the most recent United States Supreme Court decision dealing with the problem. It is said in the Gori case:
“Since 1824 it has been settled law in this Court that ‘The double-jeopardy provision of the Fifth Amendment . . . does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.’ Wade v. Hunter, 336 U. S. 684, 688. . . . [Citing cases.] Where, for reasons deemed compelling by the trial judge, who is *891best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment. . . . [Citing cases.]. It is also clear that ‘This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served . . .,’ Brock v. North Carolina, 344 U. S. 424, 427, and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion . . . [Citing cases.].”
The result reached by the majority hearkens back to the discarded reasoning of the Kinghorn case. The reasoning of the majority is in terms of absolutes, whether there was or was not strict necessity, as the appellate court views the record. The majority’s reasoning replaces the flexible workable rule inherent in the Brunn case; i.e., whether the trial court in its discretion could reasonably conclude that a necessity of a mistrial existed. The trial court was in the best position to determine whether or not it was prejudicial to the defendant when the bailiff allowed the jurors to separate for lunch. This court should not brush aside the trial court’s judgment that the situation merited an order of mistrial unless it is clearly shown that actual prejudice resulted from the court’s order.
It seems to me that it should be readily apparent that the defendant was caused no disadvantage by the granting of the mistrial. In fact, the mistrial was beneficial to the defendant in the sense that any question as to whether he received a fair trial up to that point was removed. It would be nothing short of complete fabrication to contend that the original trial court acted because of a fear that the jury would acquit the defendant; consequently, this possibility needs no discussion beyond noting that an absence of this factor means that the historical reason for the rule that a jury cannot be discharged without the defendant’s consent is not present in this case.
Realistically, the only thing lost to the defendant by *892virtue of the mistrial order was the chance to gamble with a particular jury. In this connection, the following passages appearing in State v. Stacy, supra, are pertinent:
“While it seems obvious to us that the doctrine of double jeopardy in the past has been pushed to unwarranted extremes, most certainly we are not suggesting that it is entirely without merit or constitutional effect as a protection for criminal defendants. The principle is a sound one. but reasonableness must be the key word or thought in interpreting, defining, or applying the principle of double jeopardy. The desirability of finality in verdicts and judgments, the humanitarian ideas of fair play and justice for criminal defendants, and particularly, the applications of the doctrine by early American jurists, deriving from the harshness of early-day English criminal law, must not be overemphasized and little or no emphasis given to the desirability of protecting society through an effective, evenhanded, reasonable administration of criminal justice.
“Due process and fair play regarding criminal defendants do not require a criminal trial to be a game of chance with all of the odds heavily weighted in favor of the defendant. For several generations, leaders of the bench and the bar have sought to place the administration of justice upon a sounder basis as to the rights of both plaintiffs and defendants in civil as well as criminal trials. It seems fairly obvious that the ultimate in a criminal trial should be the ascertainment of the truth; that is, whether the accused is innocent and should be set free, or whether the accused is guilty and should be incarcerated for the protection of society. Again, it should not be a matter of luck or perhaps misadventure of one of the contestants during the course of a trial; nor should the outcome depend substantially upon the skill or luck of the attorney representing one side of the controversy.”
On the basis of the Brunn case, the similar reasoning of the Stacy case and of the United States Supreme Court in Gori, I would hold that the ordering of a mistrial in the original criminal proceeding was within the discretionary power of the trial court. There has been no showing that the defendant was prejudiced or disadvantaged in any material way; hence, the trial court cannot be said to have abused its discretion.
Alternatively, accepting for the moment the majority’s *893version of the problem with its discounted emphasis of the trial court’s discretion in the matter, it is my view that the “necessity” test, outlined by the majority, is met. As the majority opinion recognizes, “the defendant’s valued right to have his trial completed by a particular jury may, on proper occasions, be subordinated to the public’s interests in fair trials designed to end in just judgments.” Since the trial court could not be absolutely certain that the record was free from reversible error, it was necessary from the standpoint of the public interest in the efficient administration of justice to remove the risk of a useless trial.
Finally, it seems to me that the majority’s decision invites the prosecutor to employ the strategy utilized by the state in State v. LaPorte (1961), 58 Wn. (2d) 816, 365 P. (2d) 24. The dissent in that case indicates my views on that subject.
The other assignments of error are without merit, but, in view of the disposition of this case by the majority, it is pointless to discuss them.
For the reasons expressed herein, I dissent.
The majority opinion distinguishes the Gori case on legalistic grounds. While the rule abstracted from that case by the majority may perhaps be accurate in a very strict, literal, legal sense, it severely restricts the reasoning and philosophy of the opinion. Since Gori relates to the question concerning the applicability of the fifth amendment to a situation which arose in the federal court system, it is, in any event, not binding precedent on this court and is of value only to the extent that its reasoning is persuasive. It is, in my opinion, inappropriate to distinguish the case on legalistic grounds and ignore the instructive reasoning it presents.