¶1(concurring).
¶2In my view, we must go further and deal specifically with the admitted basis of the defendant’s double jeopardy contention; that is, that replies of the jurors, when “polled” by the court after they reported hopeless deadlock and inability to agree upon a verdict, showed that they acquitted him of murder and it was, therefore, placing him twice in jeopardy to put him to trial again upon the same indictment.
¶3It is fundamental that a demand or request for a poll of the jury may be and must be made only after announcement of the verdict, the purpose being to determine *551whether the individual members agree with the verdict as announced. “It’s object is to ascertain for a certainty that each of the jurors approves of the verdict as returned.” Humphries v. District of Columbia, 174 U.S. 190, 194, 19 S.Ct. 637, 638, 43 L.Ed. 944. See also: Webb v. State, 166 Ga. 218, 142 S.E. 898; State v. Blisak, 58 A.2d 711, 26 N.J.Misc. 197; State v. Brooks, 59 N.M. 130, 279 P.2d 1048; State v. Windley, 178 N.C. 670, 100 S.E. 116; 5 Wharton’s Criminal Law & Procedure (Anderson) §§ 2142, 2144 ; 49 A.L.R.2d 619, §§ 1, 6.
¶4“The question put to a juror on polling must be simply, ‘It [is] this your verdict?’ If the answer is evasive or qualified, the judge may direct the juror to answer yes or no. If the answer is in the affirmative, further inquiry is inadmissible.” 5 Wharton’s Criminal Law & Procedure (Anderson) § 2144, pp. 332-333.
¶5The natural and necessary concomitant of these established principles is the further settled rule that it is premature and impermissible to poll the jury before the verdict is announced. Cable v. State (Miss.), 38 So. 98; State v. Windley, supra; Tilton v. State, 52 Ga. 478; State v. Brooks, supra.
¶6In State v. Brooks, supra, which was a prosecution for murder, the defendant, when it was apparent that the jury would be unable to agree upon a verdict, moved the court to poll the jury to ascertain if the jury had arrived at a verdict of conviction or acquittal either of first degree murder, second degree murder, or manslaughter, and if so, to return a verdict accordingly. The motion was taken under advisement and the jury was directed to consider the case further. Later in the same day, the jury still being unable to agree on a verdict, a mistrial was declared and the jury was discharged. The court then ruled on the motion, denying the same. This ruling was sustained on appeal. The court stated that while the parties to either criminal or civil cases have a right to poll the jury to ascertain whether the verdict rendered is the verdict of each individual juror, a request to have the jury polled before the verdict is rendered is premature and should be denied.
¶7The present case indicates one of the difficulties that may result from the failure of trial courts to adhere scrupulously to these sound and settled legal principles.
¶8Moreover, in this case the unalterable fact remains that the first trial ended in a mistrial.
¶9The law is universal that dismissal of a jury which cannot agree upon a verdict does not acquit the defendant and his subsequent retrial does not constitute double jeopardy. State v. Malouf, 199 Tenn. 496, 287 S.W.2d 79.
¶10Contrary to the defendant’s insistence, this principle of law, grounded in sound public policy, is neither abrogated nor rendered inapplicable in this case by the circumstance that in the first trial the trial judge allowed himself to be led into the error of “polling” the hung jury and elicited each member’s individual view of the case.