dissenting: It is held with us that pleas of former jeopardy and not guilty may be entered at the same time and tried before the same jury. S. v. Cale, 150 N. C., 805, 63 S. E., 958; S. v. White, 146 N. C., 608, 60 S. E., 505; S. v. Taylor, 133 N. C., 755, 46 S. E., 5; S. v. Winchester, 113 N. C., 641, 18 S. E., 657; S. v. Pollard, 83 N. C., 597, 8 R. C. L., 119. Hence, the confusion in the record relative to the time and manner in which the defendant entered her pleas is not regarded as fatal to her ease. S. v. Washington, 89 N. C., 535.
The first bill of indictment was quashed in part only at the instance of Mabel Yarborough, and not on motion of Mary Erick. Therefore, the decision in S. v. Drakeford, 162 N. C., 667, 78 S. E., 308, while apparently applicable to the former, would seem to be inapplicable to the latter.
The right of the court to discharge a jury and order a mistrial in any case, for cause, is not questioned by the appellant. S. v. Beal, 199 N. C., 278. The gravamen of her complaint is that, after jeopardy had attached under the first bill of indictment (S. v. Smith, 170 N. C., 742, 87 S. E., 98) and the jury discharged without cause as to her (S. v. Davis, 80 N. C., 384), she was subsequently put on trial on another bill charging the same offense. S. v. Prince, 63 N. C., 529.
Jeopardy attaches when a defendant in a criminal prosecution is placed on trial: (1) On a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been empaneled and sworn to make true deliverance in the case. 16 C. J., 236-237.
It would seem that the appealing defendant is entitled to a hearing on her plea of former jeopardy. S. v. Ellsworth, 131 N. C., 773, 42 S. E., 699.
BeogdeN, J., concurs in dissent.