Decided September 20, 1910.
On Petition for Rehearing.
[110 Pac. 791.]
Opinion by
Mr. Chief Justice Moore.3. In a petition for a rehearing herein it is maintained that in the prior opinion an error was committed in con-*168eluding that from the use of the word “filed,” as employed in the order denying the plea in bar, the special defense relied upon at the second trial was never read to the court, and for that reason no record thereof was made. The petition is supplemented by an affidavit wherein defendant’s counsel states that in open court he read from a manuscript the language set forth in the former opinion as an absolute defense, and that an order was then made that the declaration be entered of record; that the clerk thereupon requested of the deponent a restatement of the matter and was given the writing referred to in order that the delineation might be correctly copied into the journal, and that the court, having denied the plea and refused to permit the special defense to be submitted to the jury, no further attention was given to the matter until this appeal was being prepared, when it was discovered that no record of the special defense had been made. If the clerk was directed to enter the plea, but failed to obey the command, application should have been made to the trial court to correct its record by a nunc pro tunc order. It must be taken for granted that a transcript on appeal correctly states the facts therein recited, and, such being the case, its presumed verity cannot be controverted by affidavits.
4. The defendant having been formally charged with the commission of a felony, had a right to be present during the entire trial (Sec. 1378, B. & C. Comp.), and, if he was confined in jail and not represented by counsel when the first jury were discharged, as stated in the plea, his further prosecution, based on the charge specified in the indictment, might have been a matter of grave doubt: 12 Cyc. 270; State v. Wilson, 50 Ind. 487 (19 Am. Rep. 719.) Whether or not-the defendant was absent on the occasion mentioned could only have been established or disproved by testimony unless his presence is to be inferred from the order of the court discharging the jury *169which contains the following direction: “And the defendant is remanded into the custody of the sheriff.”
5. The special defense interposed herein is denominated a plea of former acquittal. We think, however, that it is unquestionably a plea of former jeopardy, in referring to which defense an author says :
“A plea of former jeopardy, without any conviction or acquittal, must set forth the facts to show that the defendant has been in jeopardy and must show how and in what manner.” 12 Cyc. 366.
6. An examination of the plea interposed will disclose that it conforms to the rule above indicated. After the plea was denied, whether or not it was essential that testimony should have been offered to show that the defendant was not present nor represented by counsel when the jury were discharged is not necessary to a decision herein, but the matter is adverted to so as to show that under a plea of former jeopardy the record alone may not always be sufficient, and that a bill of exceptions is at times required.
Since it does not satisfactorily appear that the plea was orally made or ordered to be entered of record, and as the transcript cannot be contradicted or corrected in this court by affidavits, we are compelled to adhere to our former opinion.
The petition is therefore denied.
Affirmed : Rehearing Denied.