The "manifest necessity" test is definitive in Michigan. In re Ascher, 130 Mich. 540; 90 N.W. 418 (1902), People v Sharp, 163 Mich. 79; 127 N.W. 758 (1910), People v Schepps, 231 Mich. 260; 203 N.W. 882 (1925), In re Earle, 316 Mich. 295; 25 N.W.2d 202 (1946), People v Anglin, 6 Mich. App. 666; 150 N.W.2d 532 (1967), lv den, 379 Mich. 780 (1967), People v Henley, 26 Mich. App. 15; 182 N.W.2d 19 (1970). We are confident that the statutory mandate that all accused felons be tried only in their personal presence provides the "manifest necessity" required to justify declaring a mistrial without barring later prosecution.
People v Diamond, 231 Mich. 484, 487; 204 N.W. 105 (1925). See also In re Earle, 316 Mich. 295; 25 N.W.2d 202 (1946), People v Bigge, 297 Mich. 58; 297 N.W. 70 (1941), and People v Henley, 26 Mich. App. 15; 182 N.W.2d 19 (1970). In the present case, the trial court clearly abused its discretion when it failed to use this power.
"Manifest necessity" permitting a trial court to exercise discretion to terminate a trial prematurely exists "only in very extraordinary and striking circumstances." United States v. Coolidge, 25 Fed.Cas. No. 14,858, pp. 622, 623 (D. Mass. 1815). It is manifestly necessary to curtail a trial when a jury is unable to reach a verdict, United States v. Perez, supra; when a juror's bias surfaces, Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1894); when a participant in the proceedings dies or becomes ill, In re Earle, 316 Mich. 295, 25 N.W.2d 202 (1946); or when an advancing army makes the continuation of a trial inadvisable, Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949). But not only was it not manifestly necessary to declare a mistrial in Smith's case, it was not necessary at all or even judicious to do so.
Defendant contends on appeal that discharge of the jury under the circumstances disclosed by this record and without his affirmative consent thereto bars his retrial because he has previously been put in jeopardy of conviction of such charges. He invokes the Constitution of 1908, art 2, § 14,People v. Parker, 145 Mich. 488; People v. Brosky, 222 Mich. 651; and In re Earle, 316 Mich. 295; as well as Green v. United States (1957), 355 U.S. 184 ( 78 S Ct 221, 2 L ed 2d 199, 61 ALR2d 1119); Selvester v. United States (1898), 170 U.S. 262 ( 18 S Ct 580, 42 L ed 1029), and several other cases from other State jurisdictions. In none of the cases cited is it even suggested that discharge of a jury, without the defendant's consent, for its inability to agree upon a verdict thereby bars subsequent retrial.
This Court has held the allowance of a continuance on account of the illness of a party or an important witness is not a matter of right, but rests in the sound discretion of the court. Stevens v. N.Z. Graves Corporation, 210 Mich. 585. The rule that appellate courts will reverse only when they find an abuse of discretion on the part of the trial judge has been followed in People v. Fenner, 217 Mich. 239; Kranich Bach v. Lobell, 227 Mich. 288; Baker v. Wetherald, 291 Mich. 646; In re Earle, 316 Mich. 295. In McLay v. McLay, 354 Mich. 19, this Court has lately held that the court did not abuse his discretion in denying a motion for continuance where the appellant's attorney was unable to be present; where there had been 1 previous adjournment; where there were out-of-town witnesses present; where the adjournment request was based on unavailability of counsel, whose presence could not be promised for a considerable period of time; where the appellant was known to the judge as a lawyer and known to him to have a competent law partner immediately available; and where there was no showing made of any effort to secure or summon witnesses prior to the date set for hearing or as to what such witnesses would testify if called.
Unless it can be shown there was a manifest necessity to declare a mistrial, the time and effort invested in giving defendant a fair trial will not be lost. People v. Parker (1906), 145 Mich. 488; In re Earle (1946), 316 Mich. 295; 2 Gillespie, Michigan Criminal Law Procedure (2d ed), § 698, p 887. In this case the court instructed the jury a second time that "no presumption adverse to him is to arise from the mere fact that he [defendant] does not place himself upon the witness stand".
Michigan courts have also utilized the Perez standard. See In re Earle, 316 Mich. 295 (1946); People v. Schepps, supra; People v. Sharp, 163 Mich. 79 (1910); In re Ascher, 130 Mich. 540 (1902); People v. Henley, supra; People v. Anglin, 6 Mich. App. 666 (1967). Thus, there are circumstances in which, because of manifest necessity, it is proper for the trial judge to declare a mistrial.
Moreover, the Perez test has been adopted in many Michigan decisions. In re Ascher (1902), 130 Mich. 540; People v. Sharp (1910), 163 Mich. 79; In re Earle (1946), 316 Mich. 295; People v. Schepps, supra; People v. Anglin, supra. Obviously, it is impossible to catalogue all circumstances which will, without more, require a holding of double jeopardy when a mistrial is ordered without defendant's consent.
The only question presented is whether the trial court abused its discretion in denying the motion for new trial. In re Earle (1946), 316 Mich. 295. This record does not demonstrate an abuse of discretion. The testimony relied on does not establish that defendant had a prior murder conviction. If any error occurred, it was error invited by defendant, and it could have been corrected had defendant objected in a timely manner.
Defendant's motion for a mistrial was addressed to the trial court's discretion. In re Earle (1946), 316 Mich. 295; People v. Schram (1965), 1 Mich. App. 279, affirmed 378 Mich. 145. The court examined the jurors and was satisfied from their answers that they could give defendant a fair and impartial trial.