To an indictment for grand larceny, the defendant pleaded in bar former jeopardy of punishment for the same offense. In brief, his plea was that at a former term of court he had been placed on trial on the same indictment, and that after the case had been submitted to the jury the court, without his consent, and in his absence, — he being at the time confined in prison, — discharged the jury without a verdict, on the alleged ground of their inability to agree. The court sustained a demurrer to this plea, and the correctness of this ruling is the only question presented by this appeal.
The provision of the constitution, which is but declaratory of the common law, is that “no person for the same offense shall be put twice in jeopardy of punishment.” What constitutes “jeopardy of punishment,” in the legal or constitutional sense, and when it attaches, are questions upon which there is not entire harmony among the authorities. But, notwithstanding some dissenting view's on the subject, we think it may be considered as settled by the great weight of authority, and in accordance with sound principle, that a person is put in jeopardy of punishment, in the legal sense, when a trial jury is impaneled and swmrn to try his case, upon a valid indictment, or, as it was expressed at common law, “when the jury is charged with the defendant.” After a jury is thus charged with a prisoner, he is entitled to have the trial proceed to a finish by verdict, unless an intervening necessity prevents. It is a principle of the common law, as well as of common sense, that what becomes nec*92essary in the course of legal proceedings must be done. “All general rules touching the administration of justice must be so understood as to be made consistent with the fundamental principles of justice, and consequently all cases where a strict adherence to the rule would clash with those fundamental principles are to be considered as so many exceptions to it.” Kinloch’s Case, Foster, Crown Law, 16. In accordance with this principle, it is now well settled that, where there is a manifest necessity for so doing, the court may, even without the consent of the defendant, discharge a jury without a verdict, and that this will be no bar to trying the defendant again for the same offense. As to what facts and circumstances would create a legal necessity for a discharge of the jury without a verdict, it is not now necessary to consider, further than to say that it is settled that the inability of the jury to agree constitutes a moral necessity for their discharge from giving a verdict, which will prevent it being a bar to another trial. But in this connection there comes in another familiar principle in the administration of justice, viz. that in a prosecution for felony the accused must be, and has a right to be, present at every stage of the trial; at least, unless he has waived that right. He has the same right to be present at the discharge of the jury without a verdict as at any other step in the trial, for he may be able to show good reasons why they ought not to be discharged. In this case, the defendant having been once “put in jeopardy of punishment,” and the 'jury having been discharged without his consent, and during his enforced absence, — he not having waived his right to be present, — it seems to us that it necessarily follows that he cannot be put again in jeopardy of punishment for the same offense. 1 Bish. Or. Proc. § 272; State v. Wilson, 50 Ind. 487; Rudder v. State, 29 Tex. App. 262, 15 S. W. 717. It is true that, notwithstanding some difference of opinion as to the reason for the rule, it is now universally held that if, upon a review of the case either -in the same or another court, a verdict of guilty is, upon the motion of defendant, set aside, he may be tried again for the same offense. But that is not at all analogous to the present case. The defendant has no right, under the constitutional provision now under consideration, to a review of his case after conviction, no matter how many errors may have been committed on the trial. To this right of review there may be attached such conditions as may be *93deemed proper; and, in availing himself of this right by asking relief from a conviction, the defendant must accept it subject to the condition imposed, which is that, if the verdict is set aside for error, he may be tried again. But in the present case the defendant is not asking for any such relief, but is merely standing upon the facts and record as they are, and asserting his constitutional immunity from being again put in jeopardy of punishment for the same offense. The demurrer to the plea ought to have been overruled.
Order reversed.