The defendant was tried and convicted in the District Court for the County of Los Angeles, in the month of April, 1873, of the crime of murder in the' first degree. The leading question made upon the appeal relates to the legal effect of the proceedings had at a former trial of the cause in the same Court, at the June term, 1872. These proceedings, as shown by the Bill of Exceptions, were as follows: The case was regularly brought on for trial at that term. A jury was duly empaneled and sworn; evidence was introduced* and the case was submitted to the jury on the 30th of July. The jury remained together until the evening of the 2d of August. The proceedings of that day, so far as they pertain to the question before us, are shown by the following extract from the minutes of the Court:
“ In this cause, counsel for the defense having been called and appearing, (counsel for plaintiff failing to answer,) in open Court, the Court ordered the Sheriff to proceed to the door of the jury-room where the jury in this case were under deliberation, and inquire of them if they had agreed upon a verdict, to which they replied that they ‘had not, and could not agree on a verdict,’ and the Sheriff *326thereupon reported their said reply to the Court. Whereupon the Court was ordered to be adjourned for the term and the same was accordingly done by the Sheriff.”
The term would not have expired by operation of law until the evening of the ensuing day.
The defendant’s counsel offered to prove the foregoing facts in support of a motion for a judgment of acquittal and discharge, made at the time the defendant was put upon his second trial. The motion having been denied, the defendant’s counsel tendered a plea reciting substantially the same facts, which plea the Court refused to accept. At the trial the defendant offered to prove the same facts under the plea of not guilty, and the testimony was excluded by the Court.
There is no doubt as to the general rule that whenever a person has been placed upon trial, upon a valid indictment, before a competent Court, and a jury empaneled, sworn and charged with the case, he is then in jeopardy within the meaning of the constitutional provision which declares'that ’“no person shall be subject to be twice put in jeopardy for the same offense;” and that the discharge of the jury without verdict, unless by consent of the defendant, or from some unavoidable .accident or necessity, is equivalent to an acquittal. Among these unavoidable necessities are recognized the inability of the jury to agree after a reasonable time for deliberation, and the close of the term of the Court. Unquestionably this defendant was placed in jeopardy at the first trial, and is entitted to the protection of the. constitutional provision, unless one or the other of these necessities existed.
1. The power of the Court to discharge a jury by reason of their inability to agree upon a verdict, is undisputed. It was so held in the case of Ex parte McLaughlin, (41 Cal. 212.) But it was also held that “it must be exercised in accordance with established legal rules, and sound legal discretion in the application of such rules to the facts and circumstances of each particular case.” .It is evident that in a matter so gravely affecting the life or liberty of the accused, the discretion of the Court should .be exercised *327upon some kind of evidence, and its judgment should be expressed in some form upon the record. In this case there was no evidence upon which the Court was authorized to act, and no apparent adjudication. The Sheriff Was ordered “to proceed to the door of the jury-room and inquire of them if they had agreed upon a verdict." The extent of his official duty was to receive their reply to this question, and report it to the Court.
His report of the further answer of the jury that they “ could not agree on a verdict,” was extra official, and was no evidence whatever upon which the Court could act. If the jury were in fact unable to agree, they should have been called into Court, and have announced their inability in the presence of the Court and of the defendant. In the absence of this, or some equivalent showing, the Court was not authorized to make an order of discharge upon, this ground.
Nor was there any adjudication whatever upon this subject. It does not appear to have been determined by the Court in any way that the jury were unable to agree. There was no order of discharge of .the jury, other than that resulting from the adjournment of the Court for the term. There is nothing in the case to show the existence of that inability to agree, which has been held to constitute that necessity which authorizes a discharge of a jury before verdict, and deprives the accused of his exemption from a second trial.
2. There is no doubt that the adjournment of the Court for the term operated to discharge the jury. That effect is given to a final adjournment by section four hundred and thirteen of the Criminal Practice Act, under which this trial was had. Nor can there be any doubt of the power of the Court to adjourn finally before the expiration of the term limited by statute for its continuance. But it is claimed by the counsel for appellant that there was in this case no such legal necessity for the adjournment, and the consequent discharge of the jury, as would prevent him from insisting upon his former jeopardy, in bar of a second trial. And in this we agree with the counsel.
*328Whenever the time fixed by law for the expiration of a term arrives, the powers of the Court for that term are at an end by operation of law, and the powers of the jury must terminate with those of the Court to which it was attached. Here the legal necessity for the discharge is apparent, and has been frequently recognized by the Courts. It is placed upon the same footing as a discharge occasioned by the illness or death of a juryman or of the judge. But there is, presumabty, no necessity for the final adjournment of the Court before the fixed limit of the term is reached. If such an adjournment is had pending the trial of a criminal cause, the necessity must exist and should appear, in order to rebut the presumption of jeopardy arising from the- fact of the trial. If this were otherwise, the Court might be adjourned immediately after the jury had retired from the box, and before an agreement was possible. The right which the Constitution intends to assure, to the accused, when put upon trial—to either have a verdict rendered in his case, or go free—would be made to depend upon the arbitrary discretion of the judge.
Mr. Bishop, in his work upon criminal law, after an exhaustive review of the authorities, and a discussion of the whole subject, arrives at these conclusions: “Whenever, after a trial has commenced, whether for misdemeanor or for felony, the Judge discovers any imperfection which will render a verdict against the defendant either void or voidable by him, he may stop the trial, and what has been done will be no impediment in the way of any future proceedings. Whenever, also, anything appears showing plainly that a verdict cannot be reached within the time assigned bylaw for the. holding of the Court, he may adjudge this fact to exist, and on making the adjudication matter of record, stop the trial, with the like result as before. But without the adjudication, the stopping of the trial operates to discharge the prisoner. In other words, when the record shows the defendant to have been in actual jeopardy, he is protected thereby from further peril for the same alleged offense. But when it shows also, in addition to this, something which disproves the peril, it does not show the *329peril, whatever else it shows, and, therefore, it does not protect him.” (1 Bish. Cr. Law, Section 873.)
These views are fully justified by the authorities cited in their support, and the conclusions cannot well be avoided. We are of the opinion that the discharge of the jury at the first trial of this cause was equivalent to a verdict of acquittal, and it only remains to determine in what manner the defendant should be permitted to avail himself of the light.
By section one thousand and sixteen of the Penal Code, three kinds of pleas to an indictment are provided for: First, guilty; second, not guilty; third, a former judgment of acquittal, or conviction of the offense charged. The defense that the defendant has been before in jeopardy, if it be, as we hold, sufficient, must be taken advantage of under one or the other of these pleas. It would seem that the more convenient method of interposing a defense of this nature would be by a plea analagous to a plea of former acquittal, of which it is said to be the equivalent. But we find no authority in the statute for a plea of this kind. The case falls rather within the purview of section one thousand and twenty of the Penal Code, which declares that “all matters of fact tending to establish a defense, other than that specified in the third subdivision of section one thousand and sixteen, may be given in evidence under the plea of not guilty.” We hold, that under the plea of not guilty, the evidence of the facts attending the first trial, as disclosed by the record, should have been received. For the error of the Court in rejecting this evidence, the judgment must be reversed, and the cause remanded for a new trial; and it is so ordered.