The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge
Petitioner, convicted on September 10, 1971 in New York Supreme Court, Kings County, of robbery, petty larceny, assault, and possession of a dangerous weapon, has applied for a writ of habeas corpus, alleging that his conviction violated the double jeopardy clause of the Fifth Amendment, applicable "to the States through the Fourteenth Amendment." Benton v. Maryland, 395 U.S. 784, 794, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969).
The transcripts of the state court proceedings against petitioner and another defendant reveal the following facts. Late in the day on Wednesday, March 24, 1971, a jury of twelve plus two alternates was duly impaneled and sworn. After giving preliminary instructions the judge adjourned the case until the following morning. On that day petitioner's attorney requested a hearing to determine whether identification testimony by the complaining witness was admissible under United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967). A hearing was held, and the judge ruled that although previous identifications of the defendants were tainted, the identification made in court could be presented to the jury. The Assistant District Attorney then informed the court that two of the witnesses for the prosecution were not available -- one had left for North Carolina because of a death in his family, the other had simply not appeared. Both witnesses had been subpoenaed, and apparently the Assistant District Attorney did not learn of their unavailability until after the jury had been sworn.
Because of the absence of the witnesses the Assistant District Attorney requested a continuance until Monday, March 29. The following colloquy then ensued:
"THE COURT: What am I going to do with that jury, Mr. Turner?
MR. TURNER [Assistant District Attorney]: Your Honor, since the jurors are serving their first week this week, they would be serving next week as well. I don't think it would be a hardship on those jurors because we wouldn't be holding them past their service.However, if the Court feels that it would be a hardship on the jury, then the people would have to move at this time for a discharge of the jury.
THE COURT: Are you so moving?
MR. TURNER: Well, I would first ask that the Court rule on my application to keep the jury.
MR. TURNER: Then in that case, your Honor, the people would have to move for a discharge of the jury.
THE COURT: All right, that motion is granted. The Court is basing its ruling the case of the matter of Roy Bland (phonetic) and also the matter of William Maury (phonetic), which is decided in 20 New York 2nd, Page 552. All right, bring in the jury. Discharge them."
After the attorneys for both defendants noted their exception, the judge discharged the jury. The case was called for trial again on Tuesday, March 30, 1971. The new jury heard evidence for two days and began its deliberations around noon on April 1. At 9:35 that evening, the jury informed the judge, for the second time, that it was deadlocked. The judge thereupon declared a second mistrial. A third trial of petitioner, before a third jury, began on June 21, 1971, and on this occasion he was found guilty.
The Fifth Amendment to the Constitution provides, in relevant part, that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Petitioner contends that under this clause, made applicable to the State through the Fourteenth Amendment, further proceedings against him were barred after the discharge of the first jury. He so contended in the State Court and on to the Appellate Division, Second Department, which affirmed without opinion. The Court of Appeals denied leave to appeal. Respondents acknowledge that ...