
64 Mich. App. 408 (1975)
235 N.W.2d 799
WAYNE COUNTY PROSECUTING ATTORNEY
v.
DETROIT RECORDER'S COURT JUDGE
Docket No. 18907.
Michigan Court of Appeals.
Decided September 22, 1975.
*409 William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Michael O. Lang, Assistant Prosecuting Attorney, for the plaintiff.
Before: DANHOF, P.J., and R.B. BURNS and R.M. MAHER, JJ.
R.B. BURNS, J.
Plaintiff brings an original civil action seeking a writ of superintending control and requesting us to vacate a judgment of the court below and declare a mistrial.
Plaintiff's complaint evolves from the actions of a Recorder's Court Judge in the case of People v Hibbitt, Recorder's Court No. 73 00649. On the evening of May 31, 1973, the jury informed the court that it had reached a verdict. The judge excused the jury until the next morning, at which time the foreman announced to the court that they had found the defendant not guilty by reason of insanity. One juror remained seated during the swearing, and indicated upon the poll of the jury that she did not agree with the verdict. After eliciting the information that she had voted with the majority on the preceding evening, the court bound her to this previous vote over the strenuous objection of the prosecutor. The court then accepted *410 the verdict, excused the jury, and committed the defendant to the care of the Department of Mental Health.
It is apparent from the great weight of authority that it was clearly erroneous for the court below to accept this nonunanimous verdict. There was no stipulation in this case pursuant to GCR 1963, 512.1 that a stated majority less than unanimity would be allowed to render a verdict. The clear language of GCR 1963, 512.2 provides that "If any juror expresses disagreement on such poll * * * the jury shall be sent out for further deliberation * * * ". In People v Fleish, 306 Mich 8, 14; 9 NW2d 905, 907 (1943), the Supreme Court stated that a juror could recant a previous assent to a verdict at any time prior to his express in-court assent at the polling. See also People v Pizzino, 313 Mich 97, 105; 20 NW2d 824, 827 (1945), Stewart v People, 23 Mich 63, 78 (1871). The court should have instructed the jury to deliberate further or in the alternative determined if the jury was unable to reach a verdict.
Under GCR 1963, 820.1(7), this Court, in its discretion, may "[g]ive any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief, as the case may require * * *".
It is obvious that we cannot instruct the jury to deliberate further. However, we can determine that the jury could not reach a verdict and order a mistrial.
The Court hereby sua sponte declares a mistrial because the jury was unable to reach a verdict. The cause will be remanded to the trial court for a new trial.
Reversed and remanded for a new trial.
*411 DANHOF, P.J., concurred.
R.M. MAHER, J. (dissenting).
GCR 1963, 512 provides in pertinent part:
".2 The jury agreeing on a verdict shall return into court and announce their verdict. A party may require a poll which shall be by the clerk asking each juror if it is his verdict. If any juror expresses disagreement on such poll and the number of those agreeing is less than required by law, the jury shall be sent out for further deliberation; otherwise the verdict is complete and the jury shall be discharged.
".3 The court may discharge a jury from the case because of any accident or calamity requiring it, or by consent of all the parties, or when a continuance or mistrial is declared, or when they have deliberated until it appears that they cannot agree. The court may order another jury to be drawn, and the same proceedings may be had before such new jury as might have been had before the jury so discharged." (Emphasis supplied.)
Not only did the trial judge, in the present case, fail to follow the court rule's mandate to send the jury out for further deliberation but he could not, as the majority holds, have properly declared a mistrial. There would be no "manifest necessity for the act" since there is no showing that the jury was unable to reach a verdict. See United States v Perez, 22 US 579, 580; 6 L Ed 165 (1824). The jury in this case was not allowed sufficient opportunity to properly reach a verdict or reach an impasse.
"Once a defendant has been placed in jeopardy, he has a right to have his guilt weighed finally by that tribunal. If the jury is discharged without legal justification or defendant's consent before his guilt or innocence has been determined, the discharge `is equivalent to an acquittal and bars retrial'." People v Gardner, 37 Mich *412 App 520, 526; 195 NW2d 62 (1972), lv den, 387 Mich 771 (1972). (Citations omitted.)
I would reverse the trial court and order defendant released.
