The opinion of the Court was delivered by
Schreiber, J.
The defendant Richard L. Rechtschaffer was indicted on two counts, (1) possession of more than 25 grams of marihuana in violation of N. J. S. A. 24:21-20 a(3) and (2) possession of marihuana with intent to distribute contrary to N. J. S. A. 24:21-19 a(l). During the trial, the court declared a mistrial of the second count, and the proceedings continued. The jury found the defendant guilty of possession. After the defendant’s motion for dismissal of the second count on the ground of double jeopardy was denied, he was found guilty of possession with an intent to distribute at a second trial.
The defendant appealed from the denial of his motion for dismissal and the judgment of conviction on the second count. The Appellate Division affirmed the judgment but vacated the earlier possession conviction, holding that it had merged into the conviction of possession with distributive [400]*400intent. We granted the defendant’s petition for certification. 68 N. J. 144 (1975).
The facts adduced by the State at both trials were substantially the same, and the pertinent facts may be summarized as follows: The defendant, a student at Pairleigh Dickinson University, lived in a dormitory on the campus. He and five fellow students occupied a suite which contained a living room, bathroom and three bedrooms. Two narcotics investigators from the Morris County prosecutor’s office, John Dempsey and Thomas Jennings, had been operating as undercover agents at the University. On November 6, 1972 they visited the defendant in his suite. Dempsey attempted to purchase some marihuana from the defendant, who explained that the marihuana which he had on hand was unusable because it was wet and green. However, he offered to obtain and sell Dempsey an ounce of marihuana for $20. Dempsey agreed and the defendant left the apartment presumably to acquire the marihuana.
During defendant’s absence, Plorham Park police officers and Morris County investigators armed with a search warrant entered the apartment and placed all the occupants, including the undercover agents, under arrest. Shortly thereafter the defendant returned to the apartment and he too was placed under arrest. He gave the police 20 grams of marihuana which he had on his person and disclosed 118 grams packaged in bags located in a parka which was hanging in his clothes closet and contained in a tin in his bedroom. The defendant, three roommates, Dempsey and Jennings were then incarcerated in the Plorham Park Police Department jail.
At the initial trial, part of defendant’s cross-examination of Dempsey was directed to what transpirad after the arrest.
Q. * * *■ Let’s take November 6, 1972. Did you talk to the defendant on that day?
A. Yes, sir. I did.
Q. Other than the conversations you told us about here today?
A. After he was arrested—
[401]*401Q. After he was arrested?
A. Yes, I talked to him.
Q. Did he seem upset to you?
A. Yes, sir.
Q. Very upset, isn’t that a fact?
A. I don’t know how upset. He, you know—
Q. He said certain things to you and you, in turn, said things to him, isn’t that correct?
A. Yes, we had a conversation.
Q. All right. In fact, would you say he was kind of antagonistic to you?
A. At that time, no.
Q. Later, some subsequent time?
A. On the 6th?
MR. WEINSTEIN: Any time thereafter.
MR. PARMIGIANI: Your Honor, I would ask him to be more specific. It’s very difficult to answer.
THE COURT: Of course, You were at the 6th. If you are changing that date, tell him.
MR. WEINSTEIN: This question is as to the 6th.
THE WITNESS: He wasn’t antagonistic toward me.
On redirect examination the following question was asked and answer given with respect to the conversation between Dempsey and the defendant after the arrest on November 6, 1972:
Q. Did Mr. Rechtsehaffer ever make any comment as to what he would do if he found out the person who informed on him?
A. Yes, sir. He did. He advised that if he found out who the individual was that informed on him he would take his hunting knife and kill him.
The defendant moved for a mistrial on both counts because of this “highly prejudicial statement.” The trial court agreed the statement was prejudicial but rationalized that since defense counsel had admitted defendant’s possession of more than 25 grams of marihuana in his opening statement, the defendant would not be prejudiced by continuing the trial on the first count (possession). Therefore the court declared a mistrial, over the objections of both the defendant and the prosecutor, only with respect to the second count which charged possession with intent to distribute.
[402]*402The prosecutor pointed out that “that would constitute double jeopardy as to the trial of the Second Count.” The court replied: “Of course it will. Of course. * * * I think double jeopardy may be here hut that is-not for me to decide. The State may he confronted with double jeopardy subsequently when you move this; if you move it but you can proceed * * * I will grant it as to- the Second Count, only and you can proceed on the Eirst Count.”
When asked if he wanted to proceed with the trial, defense counsel replied in the negative. The court then directed him to “go ahead” and the trial proceeded. The defendant did not take the stand and produced no evidence,1 Ho- distinction was made by the prosecutor in summation or the trial court in its charge between the 118 grams of marihuana in the parka and tin can and the 20 grams on the defendant’s person. The jury found the defendant guilty of possession of more than 25 grams of marihuana, which may have included the 20 grams found on his person.
The defendant moved for dismissal of the second count on the ground of double jeopardy. The trial court in a letter opinion denied the motion. It found that the prosecutor had acted in good faith and stated that “[t]he exclusive motivation behind the declaration of the mistrial was the concern for protecting defendant’s interests, and therefore the doctrine of double jeopardy does not apply.” The defendant was thereafter tried on the intent to distribute count. As previously indicated the prosecution produced substantially the same evidence as it had at the first trial. However, now the defendant testified in his own behalf. He admitted possession of the marihuana in his [403]*403parka and on his person, but claimed that none of the marihuana was for sale and that it was entirely for his personal use. He became suspicious when Dempsey sought to purchase some marihuana and, wanting some time to think about the situation, as a ruse he suggested that he had to leave the apartment to obtain the goods. He took a short walk and upon his return encountered the police. The defendant claimed that at all times the SO grams of marihuana which he surrendered to the police had been on his person and for his own use. He flatly denied that he sold or intended to sell any of the marihuana.
As noted above the SO grams found on his person may have been found by the jury to justify the possession conviction and the same SO grams constituted the marihuana upon which the conviction of possession with intent to distribute was predicated. It follows, as the Appellate Division held, that the same evidence “was used to support both convictions.”
The Appellate Division held that the mistrial granted sua sponte by the court did not preclude the later trial on double jeopardy grounds. It agreed with the trial court that the prosecutor acted in good faith, that Dempsey’s answer resulted in prejudice which “far outweighed” its probative value, and that the exclusive motive of the trial court was to protect the defendant. The Appellate Division analogized the proceedings to one where there is an indictment with two charges and the jury convicts on one but cannot agree on the other. In that situation double jeopardy is no bar to retrial on the second charge. Although it disclaimed approval of the partial mistrial procedure, the Appellate Division implicitly sanctioned its use but merged the conviction of possession into the conviction for possession with intent to distribute. It vacated the conviction and sentence on possession and affirmed that on the possession with intent to distribute.
The defendant’s primary thrust on appeal is that the partial mistrial was improperly granted by the court sua [404]*404sponte and that the possession conviction necessarily barred on double jeopardy grounds a second trial for possession with an intent to distribute the same marihuana whose possession had led to his first conviction.
There are language differences in the double jeopardy provisions in the Federal and State Constitutions. Article I, par. 11 of the New Jersey Constitution provides that:
No person shall, after acquittal, be tried for the same offense.
The Fifth Amendment of the Federal Constitution states:
* * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; * * *
Although the Fifth Amendment is facially broader, the state and federal clauses have been held coextensive in application. State v. Kleinwaks, 68 N. J. 328 (1975); State v. Farmer, 48 N. J. 145, 168 (1966), cert. den. 386 U. S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967); State v. Williams, 30 N. J. 105, 122 (1959). Furthermore, the proscription in the Fifth Amendment is applicable to the states by virtue of the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), and accordingly the more restrictive proscription of the Federal Constitution is binding upon us as a matter of minimum protection. It is therefore appropriate that we consider the double jeopardy issue in the light of the federal cases.
It is basic that a defendant is entitled to have a trial proceed to its normal conclusion. Subsumed in this constitutional protection is the policy to be protected from the harassment of successive prosecutions, Downum v. United States, 372 U. S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963), and to receive only one punishment for an offense. Generally speaking, a defendant is deemed subjected to jeopardy after a jury is impaneled and sworn. State v. Locklear, 16 N. J. 232, 235, 243 (1954). That [405]*405being so, the constitutional interdiction against being placed twice in jeopardy for the same offense would literally bar any subsequent trial in the absence of the defendant’s consent. Such an unconscionable result was put to rest in United States v. Perez, 22 U. S. (9 Wheat.) 579, 6 L. Ed. 165 (1824), where the trial court had discharged a jury after it was unable to agree on a verdict. The defendant sought to prevent his retrial on double jeopardy grounds. Mr. Justice Story, in rejecting the defendant’s contention, wrote:
* * * We are of opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office. [22 U. S. (9 Wheat.) at 580; emphasis supplied].
“Manifest necessity” and “the ends of public justice” are concepts whose definitive outlines depend upon the' singular facts and circumstances of each case. State v. Farmer, supra, 48 N. J. at 177 (1966). Existence of these two criteria depends upon balancing two' prime factors: Public interest in seeing that there is a fair trial designed to end in a just and equitable judgment, and the constitutional protection to which the defendant is entitled that he shall not be harassed by subjection to two trials and two punishments for essentially the same offense. See Wade [406]*406v. Hunter, 336 U. S. 684, 689, 69 S. Ct. 834, 93 L. Ed. 974, 978 (1949).
The underlying hypothesis in the Perez rule is that the trial once started should proceed to its conclusion. Unavoidable necessity obviously justifies aborting the proceedings. Incapacity of a juror or the judge, or inability of a jury to agree upon a verdict fall into this category. State v. Romeo, 43 N. J. 188 (1964), cert. den. 379 U. S. 970, 85 S. Ct. 668; 13 L. Ed. 2d 563 (1965), State v. Roller, 29 N. J. 339 (1959); Note, “Double Jeopardy: The Reprosecution Problem,” 77 Harv. L. Rev. 1272, 1277 (1964). Where the motion for the mistrial emanates from the prosecutor or the defendant because of impropriety committed by one or the other, a mistrial may be appropriate. The ends of public justice both for the defendant and the state require a fair trial, but whether a second trial is permissible may depend on the character of the impropriety. United States v. Dinitz, - U. S. -, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976). It is well settled that if prosecutorial misbehavior or manipulation causes the mistrial, the defendant should not be subjected to the harassment of a second trial. Comment, “Twice in Jeopardy,” 75 Yale L. J. 262, 286 (1965); State v. Locklear, supra, 16 N. J. at 236-237. Where, as in this case, the trial court acts sua sponte, over the objections of both parties, propriety of the mistrial depends upon the sound exercise of the court’s discretion, to be utilized “only in those situations which would otherwise result in manifest injustice.” State v. DiRienzo, 53 N. J. 360, 383 (1969); United States v. Dinitz, supra.
Unquestionably a trial court has a discretionary range within which it may properly operate to grant a mistrial whether on its own motion or otherwise. Gori v. United States, 367 U. S. 364, 81 S. Ct. 1523, 6 L. Ed. 2d 901 (1961); Illinois v. Somerville, 410 U. S. 458, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973). But there are limits.
In Downum v. United States, supra, after a jury was selected and sworn, the prosecutor moved that the jury be [407]*407discharged because a key witness essential to two of six counts was unavailable. The defendant’s request that the first two counts be dismissed and that the trial proceed on the remaining four was denied and the jury was discharged. The defendant was later tried and convicted on all six counts. The Supreme Court, in a 5-4 decision, held that the second trial should not have been held because no “imperious necessity” had compelled postponement and mistrial. 372 U. S. at 736, 83 S. Ct. 1033. Mr. Justice Clark writing for the dissenters emphasized that a mistrial was appropriate when the circumstances manifested such a necessity and when failure to discontinue the trial would have defeated the ends of justice. But he opined that the defendant had not suffered any deprivation of rights and that to acquit him without a trial on the merits would constitute a defeat of the “ends of public justice.” Id. at 743, 83 S. Ct. 1033.
Some eight years later the Supreme Court reconsidered the guidelines of the trial court’s outer discretionary limits in United States v. Jorn, 400 U. S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). The defendant had been indicted for willfully assisting in the preparation of fraudulent federal income tax returns. At the trial, the Government produced five taxpayers whom the defendant had allegedly assisted in preparation of these returns. The trial judge sua sponte declared a mistrial so that the witnesses might consult with their attorneys because of the possibility that they might make self-incriminating admissions while testifying. A second trial was held precluded on the ground of double jeopardy. The Supreme 'Court affirmed. Mr. Justice Harlan, in writing for a plurality of the Court, after commenting that the trial court’s initiative had been to protect the witnesses and not the defendant, held that the correctitude of the mistrial should not depend on the “motivation underlying the trial judge’s action.” Id. at 483, 91 S. Ct. at 556. He asserted that “the Perez doctrine of manifest necessity stands as a command to trial judges not [408]*408to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” Id. at 485, 91 S. Ct. at 557. He concluded that the trial court did not exercise a sound discretion to assure that “there was a manifest necessity for the sua sponte declaration of this mistrial.” Id. at 487, 91 S. Ct. at 558; (emphasis added). Mr. Justice Stewart, following the logic of the dissenters in Downum, wrote on behalf of the three dissenters, that:
* * * The real question is whether there has been an “abuse” of the trial process resulting in prejudice to the accused, by way of harassment or the like, such as to outweigh society’s interest in the punishment of crime. [400 U. S. at 492, 91 S. Ct. at 560].
He concluded that the mistrial “could not possibly have injured the defendant” and that the trial court had not abused its discretion. Id. at 493, 91 8. Gt. at 561.
In Illinois v. Somerville, supra,, the defendant had been indicted for theft under Illinois law. A mistrial on the State’s motion and over the defendant’s objection was granted because the indictment was fatally defective and could not be amended. The Supreme Court rejected an attack on the second trial and conviction because the defect in the indictment could not be corrected by amendment and the “ends of public justice” dictated a fair trial designed to end in completion in a just judgment which could only be accomplished by the declaration of a mistrial of the proceeding, a new indictment and a second trial. However, Mr. Justice Rehnquist, writing for the Court, pointed out:
The determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be lightly undertaken, since the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one. United States v. Jorn, supra. Nor will the lack of demonstrable additional prejudice preclude the defendant’s invocation of the double jeopardy bar in [409]*409the absence of some important countervailing interest of proper judicial administration. [410 U. S. at 471, 93 S. Ct. at 1073].2
The dissenting opinions of Mr. Justice White and Mr. Justice Marshall emphasized that the defendant’s right to a completed trial transcends the interest of the state. They rationalized that the trial court had an alternative — continuance of the trial to a conclusion. Since the defendant may have been acquitted and the error was the result of the State’s negligence, a proper balancing necessitated application of the double jeopardy clause.
In United States v. Dinitz, supra, the trial judge excluded defendant’s trial counsel from the trial. The court advised co-counsel of three choices: (1) a stay pending application to the Court of Appeals to review the propriety of the ouster, (2) continuation of the trial with existing counsel, or (3) a mistrial. Defendant moved for a mistrial and the motion was granted. Defendant subsequently moved to dismiss the indictment on the ground that a retrial would contravene the double jeopardy clause of the 'Constitution. The motion was denied. The Court of Appeals reversed by a vote of 8-7. Upon review, the Supreme Court reinstated the District Court order.
Mr. Justice Stewart, writing for the majority, distinguished between mistrials declared by a court on its own motion and those granted at the defendant’s request. There must be a manifest necessity where the court acts sua sponie. However when a defendant moves because of some judicial or prosecutional error, it is his choice either to run the risk of a conviction, followed by appeal, reversal and a second trial [410]*410or abort the proceedings and commence a new trial. If the defendant’s motion has been triggered by prosecutorial misconduct or “bad-faith” conduct by the judge, then a second trial is foreclosed. Mr. Justice Brennan dissented because the trial judge’s position effectually removed the “consensual character” of the motion. In that posture he reasoned a retrial was foreclosed because no manifest necessity justified the mistrial. It is important to note that both the majority and dissenting opinions agree that where the court on its own motion grants a mistrial, manifest necessity for that action must be shown. Further the majority seems to impliedly concede that if the trial court had granted the mistrial sua sponte, manifest necessity and the ends of public justice would not have justified that action and double jeopardy principles would have barred a second trial.3
The common threads that run through the Supreme Court cases are centered about the propriety of the trial court’s granting sua sponle the mistrial and its cause. Did the trial court properly exercise its discretion so that a mistrial was justified? Did it have a viable alternative? If justified, what circumstances created the situation? Was it due to prosecutorial or defense misconduct? Will a second trial accord with the ends of public justice and with proper [411]*411judicial administration? Will the defendant be prejudiced by a second trial, and if so, to what extent? See State v. Hudson, 139 N. J. Super. 360 (App. Div. 1976).
An assessment of all the pertinent factors in the instant ease leads only to the conclusion that neither manifest necessity nor the ends of public justice warranted the grant of the partial mistrial. Not only was the defendant prejudiced thereby, but the dual trial conflicted with proper judicial administration.
PreRminarily we observe that neither the prosecutor nor the defense counsel concurred in the trial court’s action. The defendant had sought a mistrial on both counts and he objected strenuously to granting a mistrial on only one count. It was only at the trial court’s express direction that he proceeded on the possession count. Eurther, no one questions the good faith of the prosecutor in posing the question eliciting the threat by the defendant, the answer to which led to the mistrial. No prosecutorial manipulation or misbehavior is charged.
In both trials the State proceeded on the theory that at Dempsey’s solicitation the defendant agreed to sell him some marihuana. Dempsey explained that the defendant “knew where he could obtain some marihuana which he would sell me for twenty dollars an ounce.” The defendant then left to procure the marihuana. According to Dempsey, the defendant returned in approximately 10 minutes, when he was placed under arrest and surrendered some 20 grams which were on his person. It was the State’s position that the defendant acquired this marihuana during that trip. Under these circumstances where the defendant had a specific intent to sell the marihuana when he obtained its possession, we are satisfied, as was the Appellate Division, that the possession was inseparable from possession of the same marihuana with intent -to distribute it. State v. Davis, 68 N. J. 69 (1975); State v. Wilkinson, 126 N. J. Super. 553, 556 (App. Div.), certif. den. 63 N. J. 562 (1973); State v. Fari[412]*412ello, 133 N. J. Super. 114, 120 (App. Div.), certif. granted 68 N. J. 164 (1975); State v. Ruiz, 127 N. J. Super. 350, 353-354 (App. Div. 1974), aff'd on other grounds 68 N. J. 54 (1975).
Undoubtedly, if Rechtsehaffer had been indicted, tried and found guilty of possession, that conviction would have barred a second trial for possession with intent to distribute the same marihuana.4 As was observed in State v. Wolf, 46 N. J. 301 (1966) :
It has long been the law of this State that where a lesser offense is a necessary ingredient or component part of the principal or greater offense and emanates from the same transaction, then conviction or acquittal of the lesser bars further prosecution for the greater crime. State v. Dixon, 40 N. J. 180 (1963) ; State v. Williams, supra; State v. Mark, 23 N. J. 162 (1957) ; State v. Labato, 7 N. J. 137 (1951). [Id. at 303].
Since possession was an indispensable element of the possession with intent to distribute in this case, the trial court should have granted a mistrial of both counts, if warranted at all. Otherwise, the defendant would be subjected to a second trial which embodies the same offense for which he has already been tried and found guilty.5 Even in the absence of a constitutional bar, we have made it clear that a defendant is not to be subjected to separate trials for offenses arising out of the same criminal incident. State v. Gregory, [413]*41366 N. J. 510 (1975). A mistrial of one count only which is inextricably intertwined with the second would frustrate that policy. See the mandatory joinder of offenses provided for in sections 1.07(2) and 1.07(3) of the American Law Institute’s Model Penal Code (Proposed Official Draft 1962) which this Court adopted in State v. Gregory, supra at 522, and section 20:1-8 of the proposed New Jersey Code of Criminal Justice, supra.
We are also satisfied that the prosecutor’s question was appropriate and proper. The defendant on cross-examination of Dempsey, the undercover agent, had opened up the subject of a conversation which Dempsey had with the defendant after the arrest on November 6, 1972. The prosecutor on redirect examination pursued this subject matter by directing the witness to the defendant’s comments in that conversation. The redirect was well within the scope of the defendant’s cross. See 6 Wigmore, Evidence (3 ed. 1940), § 1896 at 567.
Eurthermore, the defendant’s response that if he discovered the identity of his informer he would kill him was admissible. See Evid. R. 63(10); State v. Thompson, 59 N. J. 396, 408-409 (1971); State v. Kennedy, 135 N. J. Super. 513, 518-525 (App. Div. 1975). Declarations subsequent to the commission of the crime which indicate consciousness of guilt, or are inconsistent with innocence or tend to establish intent are relevant and admissible. State v. Allen, 53 N. J. 250 (1969). Although the remarks may also be interpreted as merely having expressed dismay at being unjustifiably incarcerated, they are consonant with an inference of an admission of guilt. It was properly the jury’s function to determine the appropriate inference and the weight to be given to it. Eurther the probative value of defendant’s answer was not substantially outweighed by the risk that its admission would create substantial danger of undue prejudice. Evid. R. 4. The comment contains the very factors which establish admissibility. Cf. State v. Kuske, [414]*414109 N. J. Super. 575 (App. Div.), certif. den. 56 N. J. 246 (1970), where Judge Conford in upholding the admissibility of letters written by the defendant wrote:
Since the letters were admissible, the fact that they were “inflammatory” is inconsequential. The excerpts from the letters described as inflammatory are the very factors which establish the documents as competent admissions by the defendant, [id. at 588],
Threats to, accompanied by gestures at, a particular person, which would appear to be more prejudicial to a defendant since they constitute an assault as distinguished from the expression here, have been held properly evidential. In State v. Hill, 47 N. J. 490 (1966) this Court sanctioned admissibility of a defendant’s threat to prevent a state witness from testifying. (“I already killed one and would kill another.”) The Court wrote:
* * * The State claimed that the statement was relevant and admissible as probative of a consciousness of guilt. The defendant countered that the statement was equally probative of consciousness of innocence and that it was therefore inadmissible. The defendant further claimed that the highly prejudicial nature of the statement made it inadmissible.
The weight of authority supports the State’s contention that threats made to a witness with the intent to induce him to stay away from a trial or not to appear to testify against the accused are admissible in evidence under a theory that any conduct of the accused inconsistent with his claim of innocence is admissible in evidence. [Id. at 500].
See generally, Annotation, “Evidence as to threats made to keep witnesses away from criminal trial,” 62 A. L. R. 136 (1929). Examples of admissibility may be found in the following: United States v. Howard, 228 F. Supp. 939, 942 (D. Neb. 1964) (defendant’s act of procuring the murder of or murdering the chief witness against him); People v. Jaquette, 253 Cal. App. 2d 38, 61 Cal. Rptr. 209, 215 (Ct. App. 1967) (defendant’s threat to prosecutrix); State v. Saiz, 104 Ariz. 407, 454 P. 2d 152 (1969) (defendant in [415]*415narcotics case beat np Ms cell-mate informer); State v. Valenzuela, 109 Ariz. 1, 503 P. 2d 949, 950 (1972) (threats against a jointly incarcerated co-defendant); State v. Mason, 394 S. W. 2d 343, 344 (Mo. Sup. Ct. 1965) (defendant’s threat to “get” state’s witness); People v. Bloom, 370 Ill. 144, 18 N. E. 2d 197, 199 (1938) (“[A]ny attempted intimidation of a witness is properly attributable to a consciousness of guilt, and testimony relating thereto is relevant and admissible in evidence.”); Curtis v. State, 44 Ala. App. 63, 64, 202 So. 2d 170, 172 (1967) (threat to shoot witness’ guts out).
Although concededly, defendant’s threats were directed at a person whose identity was unknown and whose status as a witness was uncertain these distinctions do not diminish their probative value. They represent an inferential admission of guilt evidenced by the expressed desire of revenge against an informer and as such do not justify exclusion of the question and answer on grounds of relevance and materiality. We note in passing that no objection was made to the question.6
The partial mistrial was not justified. The objection to the answer was not sound and should not have been sustained. At most the viable alternative of a precautionary instruction to the jury could have been given. Second, even if the witness’ answer had been so prejudicial as to warrant the trial court’s granting a mistrial, it should have been granted as to both counts where the subject matter of each arose out of the same episode and was so essentially intertwined. Under these circumstances, no manifest or imperious necessity existed which triggered the right of the trial court to grant a mistrial sua sponte.
Furthermore, the defendant was prejudiced by the partial mistrial. Even though he was apparently willing to [416]*416be subjected to the harassment of a second trial, he should not have been exposed to a second punishment for the same offense. The defendant’s initial trial approach had been to concede possession in order to convince the jury of his veracity in testifying that he had no intention of selling the marihuana. By permitting the jury on the one hand to accept the concession on the possession count but preventing the defendant from utilizing that concession for his defense on the intent to distribute count, the defendant suffered the loss of a substantial trial advantage. The partial mistrial which avowedly was for the purpose of protecting the defendant had quite the opposite effect.
The partial mistrial having been improvidently granted and the defendant having been convicted of possession of marihuana, the second trial for possession of that marihuana with intent to distribute subjected him to double jeopardy in contravention of the Federal and State Constitutions.
The judgment of the Appellate Division is reversed; the conviction of possession with intent to distribute is set aside; and a judgment of acquittal is directed to be entered thereon. The initial judgment of conviction and sentence for possession from which no appeal had been taken are directed to be reinstated.