Cited by

The defendant, however, asks us to hold that manifest necessity “does not exist where the deadlock is based on legally insufficient evidence.” Noting that “[a]ll possible alternatives to a mistrial must be considered, employed and found wanting before declaration of a mistrial over the defendant’s objection is 4 justified,” State v. Pugliese, 120 N.H. 728, 730 (1980); see also Howell, 158 N.H. at 720 (“A trial court must.

In State v. Pugliese, 120 N.H. 728, 731 (1980), we held, “We are not persuaded that the legislature’s use of the term ‘dwelling’ was meant to restrict the common-law privilege to use deadly force in self-defense without retreating.

“It is fundamental that under the double jeopardy clauses of the New Hampshire and United States Constitutions the defendant has a valued right to have his trial completed by a particular tribunal.” State v. Pugliese, 120 N.H. 728, 729-30 (1980) (quotations omitted; emphasis added).

In some circumstances, however, the State may pursue a second prosecution if the defendant was acquitted of the greater offense in the first prosecution and the charge in the second prosecution constitutes a lesser-included offense of the first charge.

at 528, 668 A.2d at 50, and to exhaust all reasonable alternatives to remove any jury taint before declaring a mistrial.

at 690-91, 313 A.2d at 732 (citations omitted); cf. State v. Pugliese, 120 N.H. 728, 422 A.2d 1319 (1980).

1983) (the double jeopardy clause precludes relitigation of any issue of ultimate fact finally determined by a valid judgment of acquittal).

On appeal, however, this court reversed the conviction on the ground that the mistrial declared in the first trial had not been based on “manifest necessity,” and thus his retrial on the charge of manslaughter constituted double jeopardy.

State v. Pugliese, 120 N.H. 728, 730, 422 A.2d 1319, 1320-21 (1980); State v. Booton, 114 N.H. 750, 757, 329 A.2d 376, 382 (1974), cert.

In re Raymond S., 121 N.H. 411, 414, 430 A.2d 182, 183 (1981); State v. Pugliese, 120 N.H. 728, 731, 422 A.2d 1319, 1321 (1980).

State v. LaClair, 121 N.H. 743, 433 A.2d 1326 (1981); State v. Pugliese, 120 N.H. 728, 731, 422 A.2d 1319, 1321 (1980).

In re Raymond S., 121 N.H. 411, 414, 430 A.2d 182, 183 (1981); State v. Pugliese, 120 N.H. 728, 731, 422 A.2d 1319, 1321 (1980).

In the Matter of Raymond S., 121 N.H. 411, 414, 430 A.2d 182, 183 (1981); State v. Pugliese, 120 N.H. 728, 731, 422 A.2d 1319, 1321 (1980).

The State contends that the defendant did not adequately preserve this issue for appeal, but because the issue is likely to be raised in the second trial, we will consider it.

Because this issue is likely to arise on rehearing, we address it now.

Negligent homicide is clearly a lesser-included offense of second-degree murder and of manslaughter, see State v. Pugliese, 120 N.H. 728, 730, 422 A.2d 1319, 1321 (1980); State v. Howland, 119 N.H. 413, 416, 402 A.2d 188, 191 (1979), and the State has conceded this point.

For instance, a mistrial granted even at the request of the prosecution because of a faulty indictment does not bar retrial if the declaration of a mistrial is required by “manifest necessity” or the “ends of public justice.” Illinois v. Somerville, 410 U.S 458, 469 (1973); State v. Pugliese, 120 N.H. 728, 730, 422 A.2d 1319, 1321 (1980).

Although United States Supreme Court decisions coftstruing the federal constitution are not necessarily binding on this court in construing the State constitution, State v. Hogg, 118 N.H. 262, 264, 385 A.2d 844, 845 (1978), in the situation before us the constitutional analysis is similar.