concurring specially.
I concur but wish to point out the basis for my concurrence with respect to Division 2. It is the peculiar posture of the case in the first trial that made retrial permissible, although at first blush I would have thought that OCGA § 16-1-8 (a) (2) and (e) (2) prevented it.
Defendant was indicted for two felonies, possession of marijuana, with intent to distribute it (OCGA § 16-13-30 (j)) and possession of cocaine, a controlled substance, with intent to distribute it. (OCGA § 16-13-30 (b).) Marijuana and cocaine had been found in defendant’s car after an informant told police that defendant would be picking up some drugs at one of two described locations. When defendant was arrested and later taken to the police station, two bags of marijuana fell out of his pants leg.
A jury tried the case and returned a written verdict of guilty as to possession of marijuana but the foreman announced that this was related to the marijuana from the pants leg,1 and that the jury could not agree on the other charge. Whether the jury understood that the marijuana Count 1 also embraced the marijuana from the car, the possession of which when added to the possession of the pants leg marijuana would amount to about 3 ounces, and that Count II related only to the cocaine in the car, is not clear. Its written verdict does not bear the limited finding announced by the foreman.
The court did not seek clarification nor instruct the jury to delib*211erate again concerning the balance of the count relating to marijuana. It did not advise the jury that they had not fully discharged their responsibility as to Count 1 regarding marijuana unless they had agreed that defendant was or was not guilty of possession of the marijuana in the car and that therefore their written verdict as to Count 1 may have been premature. Instead, the court declared a mistrial as to both counts.
Had the verdict been complete as to the marijuana charge, I believe there would be no “manifest necessity” for retrial on it. Orvis v. State, 237 Ga. 6 (2) (226 SE2d 570) (1976). Had it been complete, retrial would not be warranted because, as it relates to a deadlocked jury, OCGA § 16-1-8 (e) (2) allows termination only when “the jury is unable to agree upon a verdict, . . .” Then retrial would be prohibited because it would be a situation where “accused was formerly prosecuted for the same crime upon the same material facts, [and] such former prosecution [was] terminated improperly after the jury was impaneled and sworn. . . .” OCGA § 16-1-8 (a) (2). There would have been prejudice to defendant, because if the marijuana count had been fully disposed of, the pants leg incident would have been arguably irrelevant in the retrial of the cocaine count. The State, on the retrial, would not have had the persuasive benefit of showing defendant with marijuana hidden on his person, an occurrence separate from the possession of drugs in the car’s glove compartment.
Had Count 1 only involved possession of marijuana in the police station, I would agree with appellant because then there would have been no “failure” to reach a verdict, the term used in Phillips v. State, 238 Ga. 632 (235 SE2d 12) (1977). But it involved in addition the marijuana in the car, about which the jury apparently could not agree. Although jeopardy had attached, since a jury was sworn, Turner v. State, 152 Ga. App. 354 (262 SE2d 618) (1979), the trial court did not abuse its discretion in declaring a mistrial on both counts.
The State agrees that the marijuana from the pants leg amounted to less than one ounce. This would make its possession a misdemeanor. OCGA § 16-13-2 (b).