The eleventh section of the bill of rights declares, “ that no person shall, for the same offense, be twice put in jopardy of fife or limb.”
To constitute jeopardy, in the sense here used, it is not necessary there should be an actual conviction or acquittal.
The rule on this subject, as I understand it, is, that in a *693case of felony a prisoner is put in jeopardy, in a legal sense, when he is put upon his trial on a good indictment, has been arraigned and pleaded not guilty, or the plea of not guilty has been entered for him by the court, and a lawful jury is duly impanneled and sworn and charged with Ms trial.
There is no formal, uniform mode with us in charging a jury with the trial of a prisoner. The usual way is, when the jury is impanneled and sworn, and the trial is actually ready to proceed, for the solicitor, before any witness is examined, to read the indictment to the jury. When this is done, the prisoner is then in jeopardy. — 1 Bish. on Crim. Law, § 856.
A solemn form of charging the jury with the trial of a prisoner, may be seen in Wharton’s fourth and revised edition of his American Criminal Law, § 590.
When the jury is duly charged with the trial of a prisoner, he is entitled to have a verdict returned by them, and they can not be discharged by the court, unless in cases of pressing necessity; and if discharged without such necessity, it is equivalent, so far as the prisoner is concerned, to a verdict of acquittal, and he can not be subjected to another trial.'
In the case of Ned, a slave, v. The State, (7 Porter, 187,) it is decided, “ that courts have not, in capital cases, a discretionary authority to discharge a jury after evidence given.
“ 2d. That a jury is, ipso facto, discharged by the termination of the authority of the court to which it is attached.
“ 3d. That a court does possess the power to discharge a jury in any case of pressing necessity, and should exercise it whenever such a case is made to appear.
“ 4th. That the sudden illness of a juror, or of the prisoner, so that the trial can not proceed, are ascertained cases of necessity, and that many others exist, which can only be defined when particular cases arise.
“ 5th. That a court does not possess the power, in a cap*694ital case, to discharge a jury because it will not or can not agree.”
We hold, that what is here said applies equally to cases of felony; that said eleventh section of the bill, of rights embraces every case of felony, without regard to the punishment to be inflicted.
The two first special pleas pleaded in this case were clearly insufficient, because they do not state that the jury had been sworn, but only that they had been impanneled. This, without more, was not enough.
The improper discharge of the juror by the court on the first trial of the defendant, for the reason given in the bill of exceptions taken on that trial, after said juror had been accepted by the State and the prisoner, without his consent, and against his objection, was an. error, for which the conviction was, at the last January term of this court, reversed and the case remanded for another trial. This did not entitle him to be discharged ; if it had, the case would not have been remanded for another trial.
In the case of Williams v. The State, (3 Stewart, 454,( a case very much like this, it is held, that where a juror is erroneously discharged, and the prisoner is convicted, a reversal of the judgment does not discharge him from a second trial. The demurrer to these two pleas was, therefore, rightly sustained.
2. Clearly there was no error in the charge given, or in refusing the charges asked, as to the plea of former jeopardy. The said record did not showthat defendant had been put upon his trial before a jury that was impanneled, sworn, and charged with his trial, and, without his consent, and m the absence of any pressing necessity, had been discharged without rendering a verdict; consequently, it did not appear that defendant had been put in legal jeopardy. The jury on said issue found a verdict for the State, in conformity with the charge of the court; thereupon the defendant pleaded not guilty, and the trial proceeded on that plea. After the evidence was closed, the court, at the instance of the State, charged the jury in writing. To this charge, the bill of exceptions states, the *695defendant excepted, “ and to each part thereof.” This is a mere general exception, and does not disclose any particular error or errors in the said charge. .The said charge appears to be full, and intended to instruct the jury on the entire case.
[Note by JJeeoktee. — The opinion in this case was delivered at the June term, 1871. The report of it was omitted from the last volume on account of a Want of space.]I have carefully examined this charge, and although not as precise and perspicuous as it might have been, I am not prepared to say it contains any substantial error.
None of the evidence is set out in the bill of exceptions; it is impossible, therefore, to determine that this charge is erroneous. The rule is, that the appellant must make the record affirmatively show error. — Eskridge v. The State, 25 Ala. 30, and Butler v. The State, 22 Ala. 43.
There was no error in refusing the last charge asked by defendant. As the evidence is not set out, we can not know what was the character of the defendant’s intent, but in favor of the ruling of the court we will presume that the charge was abstract, and not authorized by the evidence. When a party excepts to the refusal, of a charge asked, he must show, by his bill of exceptions, that it was not abstract. — Morris v. The State, 25 Ala. 57.
The judgment of the court below must be affirmed.