I concur. When the acccused has once been con* victed, and on his motion the verdict is set aside, or judgment arrested, and he is placed on trial a second time for the same offense, and pleads former jeopardy, different courts have given different reasons why the plea should not be sustained. But it has generally been held that, by moving to set aside the verdict or arrest the judgment, he waives his constitutional right, and consents to be put a second time in jeopardy. Several text writers — notably, Bishop (see 1 Bish. Or. Law, §§ 1042-1047) — attack this doctrine of waiver and consent by argument which, it seems to me, is unanswerable and conclusive, if, under the constitutional provision in question, the accused has a constitutional right to have reviewed the error occurring at the trial. The constitution provides, “No person for the same offense shall be put twice in jeopardy of punishment”^ and it seems to me that the fallacy consists in assuming that under this provision the accused has a constitutional right to a review,, when he is convicted. Does a law which prohibits all review of the errors of the trial court, except such as are jurisdictional, on the motion of the accused, violate this provision of the constitution? It certainly does not. Such a law could deprive the accused of the right of review, the same as the state is deprived of it, whether it be review by motion in the same court, or'by appeal to another court. In defining this constitutional right of the accused, the law says to him, when he is put on trial: “If this indictment and all the prior proceedings are valid, and no unforeseen accident occurs, rendering a verdict impossible, such as the sickness of the judge, a juror, or the accused, or the failure of the jury to agree, you are put in jeopardy for better or for worse. You cannot be put again in jeopardy.. *94The result is final.' But, whether the ruling of the court or the action of the jury is right or wrong, you shall abide by it. This is your constitutional right, and all of it. It does not guaranty that the judge will not err on the trial, or include a right to have such error reviewed. This is the extent of the right, and you take the burdens with the benefits.” But the law is more merciful than this constitutional provision, and gives him another chance. The law gives him more rights than the constitutional provision gives him, but it attaches a condition to those rights. If the verdict is set aside, he shall be tried again. If he accepts the right, he cannot be heard to repudiate the condition. In the present case the defendant was put in jeopardy, though not convicted. He has not moved for any relief to which the condition can attach. He has not asked for any mercy. Under those circumstances the act of the judge, in discharging the jury in the enforced absence of the accused, amounted to an acquittal.