When this case was argued, I was very much inclined to think there was error in the record. But I am satisfied that none distinctly appears.
Ido not think it right to deprive a prisoner of a substantial right on any mere formality, and, had he put in a plea showing an acquittal on the merits, I think the jury should have been sworn to try it, and that the record should show this.
There is no doubt that, after a jury has been sworn to try a prisoner on a valid indictment or information, he is thereby put in jeopardy, and his discharge after that will be a bar to a future trial on the same charge, unless made in some one of the ways which can legally be resorted to and save thet *653process or avoid the bar. Among admissible causes of discharge are a void indictment, or information insufficient to sustain a conviction, the breaking up and discharge of the jury for some valid reason, and perhaps some other causes.
The strict rule requires the plea to show in some way, by recital of the record or by some kind of averment, enough to indicate what the real state of the old trial was, or else some reference to the former record should be made, by production or otherwise, so that it can be readily seen on what the prisoner relies. Lord Hale, who was a very fair judge, points out the necessity of some degree of care to prevent delays and abuses by sham pleas. 2 Hale, P. G. 241, etc. And it seems also that the defendant should plead over to the felony at the same time, although failure to do so will not deprive him of that right when his plea is decided against him. Archb. Grim. PL 89, 90. But there is not, according to Mr. Archbold, any need of an immediate replication or other answer by the prosecutor, and the jury should be sworn and try the issue, on which defendant has the burden. Id.
As our practice allows a bill of exceptions, I think that, whatever may be the form of the plea, it should appear in some way that defendant offered to prove his plea if not demurred to, and the court refused to allow it, and required the trial to proceed on the merits, before error will be presumed. This should certainly be the case unless the plea sets out the old proceedings so specifically as to show a clear case. This practice is far more likely than any other to prevent injustice both to the prisoner and to the people. The plea before us is certainly ambiguous, and does not make a showing at all specific which is not just as consistent with a discharge of the old jury for some cause not touching the merits as any other, and, if 'defendant desires to rest on his plea alone, he has the burden of making a good and full showing. If he had demanded a trial on it, and fault was found with *654the plea, it would have been wrong not to allow an amendment according to the facts, inasmuch as the public is interested in maintaining constitutional rights. But a bad plea on which no relief was asked will not do as a basis of reversal.
I concur in affirmance.