Mr. Justice CLARK, with whom Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
The Court in applying the rule of Cornero v. United States, 48 F.2d 69, 74 A.L.R. 797 (C.A.9th Cir., 1931), says that 'the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him may be subordinated to the public interest-when there is an imperious necessity to do so.' (Emphasis supplied.) The Court of Appeals was urged to adopt the Cornero rule, but it refused. Applying that rule here, the Court orders the conviction reversed and petitioner set free.
In Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), this Court refused to follow the Cornero rule, which was characterized as holding that the absence of witnesses was not such an 'imperious' or 'urgent necessity' as to come within the recognized exception to the double jeopardy provision. Id., at 691, 69 S.Ct. at 838, 93 L.Ed. 974. The Court said:
'We are asked to adopt the Cornero rule under which petitioner contends the absence of witnesses can never justify discontinuance of a trial. Such a rigid formula is inconsistent with the guiding principles of the Perez decision (United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824)) to which we adhere. Those principles command courts in considering whether a trial should be terminated without judgment to take 'all circumstances into account' and thereby forbid the mechanical application of an abstract formula. The value of the Perez principles thus lies in their capacity for informed application under widely different circumstances, without injury to the defendants or to the public interest.' Ibid.
I adhere to Wade v. Hunter, which in short holds that 'a trial can be discontinued when particular circumstances manifest a necessity for so doing, and when failure to discontinue would defeat the ends of justice.' Id., at 690, 69 S.Ct. at 838, 93 L.Ed. 974.
In order to apply the principles of Wade v. Hunter, it is necessary that the facts be recalled. On Wednesday or Thursday of the week preceding trial, some 12 cases, including petitioner's were set by the court for the following Monday. This was, in the words of the trial judge, 'very short notice.' Transcript of Record, p. 18. Subpoenas were issued by the District Attorney's office for approximately 100 witnesses and placed in the hands of the marshal. The petitioner's case was No. 10 on the list, and the prosecutor stated that he did not foresee that it would be reached on Tuesday, the second day of the week's hearings. The prosecutor's office was shorthanded, one of the assistants being in the military service. The prosecutor who had been assigned to petitioner's case had learned from the marshal the previous day that the wife of a Mr. Rutledge, who was the key witness in petitioner's case, would inform them of her husband's whereabouts, if she should learn of it. Since the prosecutor was trying another case on the Tuesday morning that petitioner's case was called, he was unable immediately to contact the marshal and determine whether Mr. Rutledge was present, and he announced ready for trial without ascertaining this. The jury for petitioner's case was selected and then excused until 2 p.m., and the prosecutor proceeded to complete the hearing of his other case before noon. Then, upon checking with the marshal's office during the noon recess, the prosecutor discovered that Rutledge was not present. He immediately informed the judge in his chambers, and upon the opening of the afternoon session defense counsel was advised in open court that the key witness of the Government was not available and the case would have to go over a couple of days. A defense motion to dismiss two of the six counts in the indictment-those on which Rutledge was the key witness-on the ground of lack of prosecution and proceed to trial on the remaining counts was denied by the court, and the jury was discharged-all over objections from the defense. Two days later the case was called and the petitioner interposed his plea of double jeopardy. Thereafter, a second jury was impaneled, and petitioner was tried and found guilty on all counts.