Concurring Opinion
Williamson, C. J.I concur in the result reached by Justices Sullivan and Tapley and join with them in sustaining the plea of former jeopardy. My reasons differ in emphasis from those given in the main opinion drawn by Justice Sullivan in his thoughtful review of the facts and law. The issue involves a fundamental constitutional right of the respondent.
*448“No person, for the same offence, shall be twice put in jeopardy of life or limb.” Maine Constitution, Art. I, § 8.
“. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; . . .” U. S. Constitution, Art. V (jeopardy clause).
The right comes from the common law. See Green v. U. S., 355 U. S. 184, 78 S. Ct. 221, 61 A. L. R. (2nd) 1119.
The principle governing mistrial without consent of the respondent as found in U. S. v. Perez, 9 Wheaton 579, and the facts of the instant case are fully stated in the main opinion.
In my opinion there was no “manifest necessity” within the Perez rule and the mistrial was not ordered within the sound discretion of the court.
The case, as I see it, comes to this. The State offered and there were admitted 26 pieces of furniture as the furniture that had actually been stolen by the thief. Later in the case two key witnesses for the State changed their testimony with the result that the court considered the furniture and related evidence had been erroneously admitted. The court thereupon ordered a mistrial against the objection of the respondent on the ground that the error, deemed by the court to be prejudicial to the respondent, could not be corrected by an instruction to the jury to disregard the objectionable evidence. “. . . it appears to me (the court) that the only way a fair trial can take place in this case is — or I should say it appears to me there is no way a fair trial could take place if the case continues before this jury, it has heard so much testimony which now appears to have been testimony they should not hear,. .”
The case does not present, in my view, an unusual situation. Evidence admitted at one time often becomes for *449one reason or another inadmissible later. The jury is instructed to disregard the inadmissible evidence. The trial then continues to completion, with suitable objections or exceptions to preserve points for decision in the Law Court.
We are entitled to presume that the jury would have followed suitable instructions of the court. In State v. Kingsbury, 58 Me. 238, at 242, the court said:
“The government may propose to contradict a witness in defense, and may call testimony for that purpose. The evidence fails to contradict the witness. The jury are instructed not to regard such testimony. When proper instructions are given, such admission is not deemed a ground for a new trial. It is to be presumed the jury will follow the directions of the court. If it were not so, a witness might stop a cause in mid trial, or it must proceed at the hazard of a new trial, and the court would be powerless to avert the evil by any instructions, however pertinent and stringent. In the present case, if the jury gave heed to the court, and we must presume they did, no harm was done, even if the evidence was not contradictory ; for they were told it was not to be weighed as proof of the prisoner’s guilt at all.”
See also State v. Cox, 138 Me. 151, at 176, 23 A. (2nd) 634.
A finding of “manifest necessity” in the circumstances of this case would, I believe, breach the restrictions placed on mistrial to the disadvantage of the respondent protected as he is by the Constitution. Certainly in the meaning of the principle and in its application would thereby be lessened. The great protection against harassment by a powerful state would rest perhaps upon doubtful rulings on evidentiary problems. The solution of such problems should, in my view, be left to the appellate court and not decided in the trial court without the consent of the man who is in jeopardy.
*450The case of the respondent who objects to a mistrial does not often arise. The reason no doubt is that the respondent, feeling the heat of an impending guilty verdict, wishes the benefit of a mistrial and thus a new trial without the risk and expense of an appeal.
Such, however, is not the instant case. Here the respondent demands that the jury drawn to try the case between him and the State finish the task. The jury may be entirely satisfactory in its composition. His witnesses may be available now and not later. The expense and torment of a new trial may appear too burdensome. He may believe that with the State’s evidence on the furniture removed, he will stand a better chance of a favorable verdict. He may be entirely confident that he will be found not guilty.
Without question, the court acted in his judgment for the protection of the respondent. There is no suggestion that the mistrial was designed to aid the State by giving time to reform its forces and to change its strategy. To grant a mistrial to benefit the State would of course have been improper. The mistrial was ordered, it must be assumed, on the premise that the admissible evidence in the case warranted a guilty verdict, otherwise the court would have directed a verdict for the respondent.
The cases, as I read them, add strength to the respondent’s position. No case involves a mistrial without consent on the ground the court was unable to remove the effect of evidence erroneously admitted from the minds of the jury.
In State v. Slorah, 118 Me. 203, 205, 106 A. 768, the respondent on trial for murder, on a jury view at the scene of the alleged crime cried out, “My God! take me away from here or I shall be insane again.” The court said, at p. 216:
*451“The exclamation by him in the presence of the jury, however, that if he was not removed he would go insane again, was in the nature of evidence improperly presented to the jury out of court, - - an unsworn statement of the accused.”
Thompson v. United States, 155 U. S. 271, 15 S. Ct. 73 (qualifications of a juror); Wade v. Hunter, 336 U. S. 684, 69 S. Ct. 834 (tactical needs of an advancing army in Germany preventing court martial); U. S. v. Gori (CA 2) 282 F. (2nd) 43, affirmed Gori, Petr. v. U. S., S. Ct. June 12, 1961 (conduct of district attorney); Lovato v. New Mexico, 242 U. S. 199, 37 S. Ct. 107 (dismissal to permit arraignment); People v. Thomas, 15 Ill. (2nd) 344, 155 N. E. (2nd) 16 (judge charged defendant’s attorney with attempting “a manufactured and sympathetic emotional appeal”); Simmons v. U. S., 142 U. S. 148, 12 S. Ct. 171 (incompetent juror and outside influence on jury); U. S. v. Cimino, 224 F. (2nd) 274 (prejudiced juror); Scott v. U. S., 202 F. (2nd) 354 (withdrawal of counsel); U. S. v. Perez, supra (the typical “hung jury” case).
In Brock v. N. C., 344 U. S. 424, 73 S. Ct. 349, the issue was whether there was a violation of the Fourteenth Amendment by a mistrial in the North Carolina Court on refusal of state’s witnesses to testify on the ground of self-incrimination. The court concluded that this had long been the common law rule in North Carolina and did not violate the Fourteenth Amendment. The North Carolina rule is against the great weight of authority. Chief Justice Vinson, in dissenting, pointed out that no case in any other jurisdiction supported the North Carolina rule. See also State v. Locklear, 16 N. J. 232, 108 A. (2nd) 436, 442, for a review of cases.
We are not here concerned with the guilt or innocence of the respondent.
“Assuming a failure of justice in the instant case, it is outweighed by the general personal security *452afforded by the great principle of freedom from double jeopardy. Such misadventures are the price of individual protection against arbitrary power.” State v. Locklear, supra, at p. 442.
State of Maine vs. John B. Sanborn