(dissenting).
I dissent from the view expressed by the majority, for I would find on the facts of this case that the failure to object to the discharge of the jury at the time of trial was a tactical decision which is binding on the defendant and precludes consideration of his claim on appeal. Such a conclusion *450requires both an understanding of the doctrine of double jeopardy and the discretion of a trial court in terminating a trial prior to a verdict.
In deciding to abort a criminal trial short of a verdict and without a defendant’s consent, after jeopardy has attached, the trial judge is typically afforded broad discretion,1 since he is “best situated intelligently to make such a decision.”2 The necessity for such discretion is founded on the recognition that when jurors fail to agree the trial judge is placed on the horns of a dilemma. If the court discharges the jury before it reaches a verdict, the defendant will likely plead “double jeopardy” unless he has expressly consented to the discharge. On the other, hand, if the court urges the jury to resume deliberations, and it thereafter brings in a verdict of guilty, the defendant will frequently contend that the jury was coerced.3 But, as a counter to the trial court’s discretion, it is recognized that the double jeopardy clause safeguards the defendant’s “valued right to have his trial completed by a particular tribunal,” 4 which “he might believe to be favorably disposed to his fate.” 5
Therefore, with due regard for the rights of the defendant and the problems of the hung jury, trial court discretion has been narrowed and a second prosecution occasionally barred where a trial judge, sua sponte, has mistakenly declared a mistrial.6 In defining standards for the exercise of this discretion, the United States Supreme Court has continually adhered to the formulation of Justice Story in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824):
[T]he law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is manifest necessity for the act, or the ends of public justice would otherwise be defeated.7
Beyond these general guidelines, the Court has emphasized that each case must turn upon its own facts.8
This court too has recognized the “well-established rule that the fact that an accused has been placed on trial before a competent tribunal does not, standing alone, invariably bar his reprosecution if the trial court did not result in a verdict.” 9 Thus, in Muller v. State,10 we noted that
a trial court may declare a mistrial without barring retrial when it concludes that there is a manifest necessity to do so.
In such instances, the permissibility of a retrial will depend upon the circum*451stances that made it manifestly necessary to dismiss the jury.
Therefore it is necessary to examine the factual background of this appeal to ascertain whether manifest necessity existed.
There is no dispute that the jury foreman gave the following note to the bailiff:
We, feel we are deadlocked at this time with no hope of reaching an unanimous decision in the future. We await further instructions.
There is no dispute that the case was submitted to the jury at 11:45 a. m. and that the note was handed to the bailiff at approximately 9:00 p. m. There is also no dispute that after numerous fruitless attempts by the judge and two bailiffs over a one and one-half hour period to find either the defendant or his counsel the court in the presence of the district attorney closely questioned the foreman on the deadlock.11 He confirmed the impasse. On Monday morning, after defendant and his counsel had been located, the inquiry into the jury stalemate was repeated. At that time, the defendant did not contest the conclusion that the jury was incapable of agreeing on a verdict nor did he challenge the discharge of the jury. In fact, there was no objection at all to the discharge by either defense counsel or the defendant until some six months later when a motion to dismiss the indictment was filed on the grounds that the declaration of mistrial had been improper and that jeopardy had attached.
The appellant now urges there was obvious prejudice even though he did not object to the jury discharge. In support of a claim of plain error, he argues that he could have asked for additional instructions or assisted the court in bringing the case to a verdict. However, it is equally logical that the failure to raise any objection was tactical. A hung jury is obviously preferable to a guilty verdict. It is also clear that a criminal defendant is not going to urge further deliberation of a jury leaning toward conviction. Since appellant did not pursue the matter, the record does not reveal the nature of the split,12 and, thus, this court can only speculate whether the discharge was favorable or unfavorable to him.
The majority takes the position that the jury could never have been convened again, but a simple stipulation by both parties for the jury to continue could have permitted additional deliberation. An objection would have had the effect of focusing on the problem at a time when there was still a possibility it could have been corrected and, further, would have provided a record necessary to support a claim of error. Because there is a logical reason why the discharge of the jury could have been beneficial to the defendant, he must bear the burden of objecting at trial or be deemed to have waived the error.13
The merit of appellant’s claim that prejudice followed from discharge of this hung jury is more understandable in context. The facts are classifically simple. This is a prosecution for the attempted rape of a woman hitchhiker by a defendant who acknowledged picking up the complaining witness but who denied using any force. There were no witnesses to the event; to convict, the jury had to believe the woman ; to acquit, it had to believe the defend*452ant. The eight hours of deliberation,14 then, were over a straightforward issue of credibility; some jurors believed the complaining witness and some believed the defendant. To find that the trial judge committed plain error in this situation by discharging the jury overlooks the fact that he, too, sat through the entire trial and must have reached his own conclusion whether there was enough substance to the conflict in testimony that more deliberation would have brought in a verdict. In footnote 18 the majority indicates that it gives no weight to the trial judge’s statement that he would have discharged the jury regardless of any suggestions Koehler or his attorney might have made. Because there was only the single issue of credibility, I do not agree. In my view, the trial judge was the only person qualified to judge that friendly persuasion of non-agreeing jurors had ended and that coercion by the court would be the next step required to reach a verdict.
In Fields v. State, 487 P.2d 831, 837 (Alaska 1971), we recognized that “a hung jury is a legitimate end of a criminal trial, and is the occasionally inevitable result of requiring an unanimous verdict beyond a reasonable doubt.” We also noted that the law generally attempts to protect juries from potentially coercive influences. Obviously the dividing line is a difficult one to follow, but it is clear to me that the trial judge was sufficiently conscientious to enable us to say categorically that there was no plain error.
I would affirm the decision of the trial court.
. E. g., Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425, 429 (1973).
. Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901, 904 (1960).
. Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382, 386-387 (1964).
. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949).
. United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 558, 27 L.Ed.2d 543, 557 (1971).
. See United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Lewis v. State, 452 P.2d 892 (Alaska 1969).
It should be noted that the most recent federal decision in this area found only two other appellate cases in the United States (one is cited by the majority at footnote 27) where the court found an abuse of discretion in declaring a hung jury. United States v. Goldstein, 479 F.2d 1061, 1069 (2d Cir.1973).
. Quoted with approval in Muller v. State, 478 P.2d 822, 826 (Alaska 1971); Lewis v. State, 452 P.2d 892, 895 (Alaska 1969).
. United States v. Goldstein, 479 F.2d 1061, 1068 (2d Cir. 1973).
. Lewis v. State, 452 P.2d 892, 894 (Alaska 1969); Selman v. State, 406 P.2d 181, 186 n. 18 (Alaska 1965). See Wade v. Hunter, 336 U.S. 684, 688-689, 69 S.Ct. 834, 836-837, 93 L.Ed. 974, 978 (1949).
. 478 P.2d 822, 826 (Alaska 1971).
. The court was able to contact counsel’s wife and two other members of the Public Defender’s office, as well as a friend of the defendant, but it could find no one who could locate the defendant or his counsel.
. Disclosure of the nature of the jury split may in itself be grounds for reversal where conviction follows. See United States v. Rogers, 289 F.2d 433, 435 (4th Cir. 1961). But, there is no such impediment to disclosure where inquiry is made by the court after discharge of the jury.
. See, e. g., Lanier v. State, 486 P.2d 981, 986-987 (Alaska 1971); Johnson v. State, 486 P.2d 379, 381 (Alaska 1971).
. The majority states there were six and one-half hours of deliberation, but the bailiff’s notes show the following:
Deliberation
case went to jury 11:45 a. m.
jury to lunch 12 :00 noon
jury back from lunch 1:00 p. m.
jury to dinner 6:15 p. m. 5¾ hours
jury back 7:30 p.m.
jury sent note 9 :00 p. m. 1½ hours
jury discharged 10 :30 p. m. 1½ hours
Total Time Deliberating 8⅛ hours
The jury received instructions from the court at 4 :30 so possibly 15 minutes were spent on that. It is logical to assume that the jury continued deliberating during the attempt to find the defendant and his attorney, for they did not know of the difficulty in finding them and remained under a continuing obligation to reach a verdict. While some argument has been advanced by the defendant that they probably sat and waited, such a conclusion is contrary to the standard jury instruction which presumes an official duty to have been performed unless there is evidence to the contrary.