491 F.2d 507
Fate THOMAS, Sheriff, Nashville Metropolitan Jail, Appellant,v.Mark Jerome BEASLEY, Appellee.
No. 73-1628.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 3, 1973.Decided Feb. 5, 1974.

W. Henry Haile, Asst. Atty. Gen., of Tennessee, Nashville, Tenn., on brief, for appellant; David M. Pack, Atty. Gen., of Tennessee, of counsel.
Harold D. Hardin (Court-appointed) Nashville, Tenn., on brief, for appellee.
Before PHILLIPS, Chief Judge, and WEICK and PECK, Circuit Judges.
PHILLIPS, Chief Judge.


1
District Judge L. Clure Morton granted Mark Jerome Beasley's application for a writ of habeas corpus.  The decision of the District Court was based upon a finding that Beasley already had been put in jeopardy for the offense for which he was being held in custody awaiting trial, in violation of the Fifth Amendment to the Constitution of the United States.  The Fifth Amendment is applicable to the states through the Fourteenth Amendment.  Benton v. Maryland, 395 U.S. 784, 793, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).


2
The State of Tennessee appeals.  We affirm.


3
Beasley was arrested and jailed in November 1971.  Along with three others he was indicted for armed robbery in January 1972 and trial was set for June 1972.  Beasley was represented by an attorney in the office of the Public Defender of Davidson County, Tennessee.  On the day of the trial the Public Defender announced that he had a serious conflict of interest and could not represent both Beasley and one of his co-defendants.  Thereupon an attorney in private practice was appointed by the State trial court to represent Beasley.  The case was continued again on September 18, 1972, because the chief prosecution witness was observing a religious holiday.  At that time Beasley's motion to dismiss for lack of a speedy trial was denied.


4
The case came to trial on September 19, 1972.  A jury was impaneled and sworn and testimony commenced.  The State's first witness, the prosecutrix, had completed a substantial portion of her testimony before the court recessed for lunch.  During the lunch recess, the State trial judge learned that counsel for two of the other defendants (but not including Beasley) had served previously as special night judge of the Court of General Sessions of the Metropolitan Government of Nashville and Davidson County, and in that capacity had signed the arrest warrants for the defendants.  Due to this discovery, the trial judge stated that his only alternative was to declare a mistrial and requested defense counsel to consent thereto.  Three defendants agreed to a mistrial, but Beasley objected.


5
Instead of proceeding with the trial of Beasley before the jury which already had heard a substantial part of the testimony of the prosecutrix, the State trial judge declared a mistrial as to Beasley over his objection, denied Beasley's motion for a severance, and reset the case for trial at a later date.  When the case was called again for trial, Beasley entered a plea of double jeopardy and renewed his motion to dismiss for lack of a speedy trial.  The State trial Judge overruled both the plea of double jeopardy and the motion to dismiss for lack of a speedy trial.  Thereafter, he also dismissed Beasley's petition for rehearing.


6
Thereupon Beasley filed a petition for certiorari and supersedeas in the Tennessee Court of Criminal Appeals, raising his defense of double jeopardy.  The Court of Criminal Appeals dismissed the petition and the Supreme Court of Tennessee denied certiorari in unpublished decisions.


7
At the time the writ of habeas corpus was granted by the District Court on February 9, 1973, Beasley had been confined in jail continuously since November, 1971.


8
We agree with the District Court that jeopardy attached at the first trial and that Beasley's plea of double jeopardy is a conclusive bar to retrial.  United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).


9
The prohibition of the Double Jeopardy Clause 'is not against being twice punished, but against being twice put in jeopardy . . ..'  United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896).


10
We are unwilling to hold that Beasley must be returned to jail and be confined there pending a second trial, which clearly would be barred by his double jeopardy plea.  As District Judge Morton said, 'Under the state process petitioner must remain confined in the Nashville Metropolitan Jail until he is subjected to a second trial.  If petitioner's claim is a valid one, each day he remains in jail adds to the deprivation of his rights guaranteed by the double jeopardy clause.'


11
The State contends that the writ was granted prematurely because Beasley has not exhausted his State remedies.  It is argued that he should be subjected to a second trial, where his plea of double jeopardy again would be entered; and that if Beasley should be convicted at the second trial, the appellate courts of Tennessee ought to be afforded an opportunity to pass upon the plea on its merits.1


12
The exhaustion of remedies contention is answered conclusively by the recent decision of this court in Rivers v. Lucas, 477 F.2d 199 (6th Cir. 1973).2  Rivers was indicted for murder in the first degree.  He plead guilty to manslaughter.  A few months after sentencing, his conviction was reversed and remanded for further proceedings.  Rivers moved to have the original indictment quashed or at least reduced to manslaughter.  This motion was denied by the State trial court.  Rivers appealed this denial all the way through Michigan's appellate process without getting a decision on the merits.


13
In Rivers this court affirmed the grant of a conditional writ of habeas corpus saying:


14
'The only thing left for him to do in the state courts is to submit to trial on the murder charge.  Since exposure to the risk of conviction is the very thing he is seeking to avoid, this step (submitting to trial) is not necessary for a complete exhaustion of state remedies where freedom from double jeopardy is the right sought to be preserved.'  477 F.2d at 202-203.


15
It is to be reemphasized that, in the case at bar, the first trial ended in a mistrial.  Before the second trial commenced, Beasley moved to dismiss the indictment on double jeopardy grounds.  As in Rivers, the entire appellate process in the State courts was exhausted without obtaining a decision on the merits.  In the present case, as in Rivers, Beasley has done everything available within the State court system that it is possible for him to do to avoid retrial.


16
The Double Jeopardy Clause of the Fifth Amendment prohibits a defendant from being subjected to two trials for the same offense unless 'manifest necessity' or the 'ends of justice' require the declaration of a mistrial.  Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).  'Manifest necessity' and the 'ends of justice' do not require a second trial in the present case.  The first trial of Beasley could have been completed before the jury which already had heard a substantial part of the testimony of the prosecutrix, in spite of the fact that a mistrial was declared as to other defendants.  A severance at that time would have been the appropriate remedy.  Since it is manifest under the authorities hereinabove cited that jeopardy already had attached as to Beasley, the Double Jeopardy Clause precludes the State of Tennessee from subjecting him to a second trial.


17
Affirmed.



1
 The dismissal of Beasley's petition for certiorari and supersedeas by the Tennessee Court of Criminal Appeals was on procedural grounds.  That court said, 'this is an interlocutory order from the Davidson County Criminal Court, and the defendant has not yet been to trial.'


2
 On October 15, 1973, the Supreme Court vacated our judgment in Lucas v. Rivers, 414 U.S. 896, 94 S.Ct. 232, 38 L.Ed.2d 139 and remanded the case to this court for consideration of the question of mootness in light of People v. McMiller, 389 Mich. 425, 208 N.W.2d 451 (1973).  Although a panel of this court subsequently dismissed Rivers as moot, the principle enunciated in Rivers with respect to exhaustion of remedies still stands as the law of this circuit


