410 U.S. 458 (1973)
On March 19, 1964, respondent Somerville was indicted by an Illinois grand jury for the crime of theft.1 The case was called for trial in the Circuit Court of Cook County and a jury was impaneled and sworn on November 1, 1965.2 The following day, before any evidence had been presented, the prosecuting attorney realized that the indictment failed to allege that the respondent intended to permanently deprive the owner of his property.3
Faced with this situation, the Illinois trial court concluded that further proceedings under this defective indictment would be useless and granted the State's motion for a mistrial.4 The trial court granted the motion and discharged the jury over the defendant's objection.5 On November 3, the grand jury handed down a second indictment alleging the requisite intent.6
Respondent was arraigned two weeks after the first trial was aborted, raised a claim of double jeopardy which was overruled, and the second trial commenced shortly thereafter.7 The jury returned a verdict of guilty, sentence was imposed, and the Illinois courts upheld the conviction.8
Respondent then sought federal habeas corpus relief in the United States District Court for the Northern District of Illinois, which was denied.9 The Seventh Circuit affirmed the denial of habeas corpus prior to our decision in United States v. Jorn.10 The respondent's petition for certiorari was granted, and the case remanded for reconsideration in light of Jorn and Downum v. United States.11 On remand, the Seventh Circuit held that respondent's petition for habeas corpus should have been granted.12 The Supreme Court granted certiorari to review the judgment of the Court of Appeals.13
Whether declaration of a mistrial over the defendant's objection, because the trial court concluded that the indictment was insufficient to charge a crime, necessarily prevents a State from subsequently trying the defendant under a valid indictment?14
The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, after conviction, and against multiple punishments for the same offense.15 In addition, it protects the defendant's valued right to have the trial concluded by a particular tribunal.16 This right is not absolute, however, and may be subordinated to the public's interest in fair trials designed to end in just judgments.17 The classic test for permitting a retrial after a mistrial is whether there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, as formulated in United States v. Perez.18
No.19 The facts establish that the defect in the indictment was jurisdictional under Illinois law.20 It could not be cured by amendment or waived.21 Therefore any verdict would have been subject to automatic reversal on appeal or collateral attack.22 The trial judge therefore faced a situation in which continuing the trial would have been a vain and useless act that defeated the ends of public justice.23
There was no indication of bad faith or prosecutorial manipulation because the defect was not apparent on the face of the indictment and was discovered only after the jury had been sworn.24 This case is distinguishable from Downum and Jorn because the mistrial here implemented a legitimate state policy regarding indictments without lending itself to abuse, and the delay was minimal.25 The declaration of mistrial was thus required by manifest necessity within the meaning of Perez and its progeny.26
The respondent's retrial and conviction did not violate the Double Jeopardy Clause.27
Related opinions on this issue
Joined by Justices Brennan And Marshall
The Double Jeopardy Clause was designed to protect the accused from being subjected to multiple prosecutions for the same offense.28 Once the jury is impaneled and sworn, the defendant has a right to have his case decided by that tribunal.29 In this case, there was no manifest necessity for declaring a mistrial.30
The defect in the indictment was a matter that could have been cured by amendment before trial or waived by the defendant.31 The prosecutor's simple failure to discover the defect until after the trial had begun should not be permitted to defeat the defendant's constitutional right not to be twice put in jeopardy.32 The Court's decision today expands the manifest necessity exception beyond its proper bounds and undermines the protections of the Double Jeopardy Clause.33
In my view, the mistrial was not required by manifest necessity.34 The trial court could have proceeded with the trial and allowed the defendant to challenge the sufficiency of the indictment on appeal if he were convicted.35 By declaring a mistrial at the request of the State, the trial judge deprived the defendant of his right to have the first jury decide his case.36
This action was not justified by any emergency or unforeseen circumstance that made it impossible to continue the trial.37 The defect in the indictment was known or should have been known to the prosecutor before the trial began.38
Joined by Justices Douglas And Brennan
For the purposes of the Double Jeopardy Clause, jeopardy attaches when a criminal trial commences before judge or jury.39 This point has arrived when a jury has been selected and sworn, even though no evidence has been taken.40 Very similar considerations govern this case.41
Somerville asserts a right to but one trial and to a verdict by the initial jury.42 A mistrial was directed at the instance of the State, over Somerville's objection, and was occasioned by official error in drafting the indictment unaccompanied by bad faith, overreaching, or specific prejudice to the defense at a later trial.43 The majority's balancing gives too little weight to the fundamental place of the Double Jeopardy Clause and the purposes it seeks to serve.44
Judged by the standards of Downum and Jorn there was not manifest necessity for a mistrial to compensate for prosecutorial mistake.45
The Court substantially eviscerates the rationale of Jorn and Downum by reverting to a totally unstructured analysis.46 The balance that the majority strikes essentially ignores the importance of a factor which was determinative in Jorn and Downum: the accused's interest in his valued right to have his trial completed by a particular tribunal.47 The trial judge could have continued the trial or proceeded despite the risk of reversal, thereby protecting the defendant's interest in having his trial completed by the jury already chosen.48
I believe that Jorn and Downum are controlling.