On Motion for Rehearing.
MR. JUSTICE MILBURNdelivered the opinion of the court.
Counsel invites the attention of the court to certain sections of the Penal Code which were not cited by the court in the former opinion, desiring to convince us that the word “jeopardy,” as used in the legislative Acts of the state, should be understood as meaning more than former acquittal or former conviction, and saying that we have inadvertently overlooked the distinc*514tion between real and apparent jeopardy. After further consideration of this difficult matter, upon which the court and text-writers of the country are so hopelessly divided, we are of the opinion that what we said in the former opinion should be amplified, but not that our conclusion should be changed.
Section 1940 of the Penal Code is as follows: ‘ ‘ There are four kinds of pleas to an indictment or information: A plea of — 1. Guilty. 2. Not guilty. 3. A former judgment of conviction or acquittal of the offense charged, which may be pleaded either with or without the plea of not guilty. 4. Once in jeopardy.”
Section 1941 of the same Code provides: ‘ ‘ Every plea must be oral, and entered upon the minutes of the court in substantially the following form: * >:í # 3. If he plead a former conviction or acquittal: ‘The defendant pleads that he has already been convicted (or acquitted) of the offense charged by the judgment of the court of - (naming it), rendered at - (naming the place) on the- day of-.’ 4. If he plead once in jeopardy: ‘The defendant pleads that he has been once in jeopardy for the offense charged’ (specifying the time, place and court).”
Section 1947 reads: “When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment or information, the conviction, acquittal or jeopardy is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under the indictment or information. ’ ’
Section 1990 is as follows: “An issue of.fact arises: 1. Upon a plea of not guilty. 2. Upon a plea of a former conviction or acquittal of the same offense. 3. Upon a plea of once in jeopardy.”
Section 1356 provides: “No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted. ’ ’
Section 2126 reads as follows: “In all cases where a jury is discharged or prevented from giving a verdict by reason of an *515accident or other cause, except where the defendant is discharged during the progress of the trial, or after the cause is submitted to them, the cause may be again tried. ’ ’ This last section, which was not called to our attention by counsel, supports the position taken in the former opinion.
The language of the statute in these several sections is not clear, and the sections are apparently somewhat conflicting, but, when read together, are not impossible to understand. Section 1940, in the third subdivision cited, provides that “a former judgment of conviction or acquittal of the offense charged” may be pleaded, but, as we see, other sections speak of conviction or acquittal merely. The special plea of former judgment of conviction or acquittal, or of former conviction or acquittal, seems to be superfluous, for the reason that the plea of “once in jeopardy” can be made. The latter includes the plea of former conviction or acquittal and a judgment of conviction or acquittal. Certainly, if a man has been convicted and a judgment of conviction has been entered for a felony, he has been “once in jeopardy.” We think that the plea of “once in jeopardy” was added to include other cases of jeopardy than those of judgment of conviction or acquittal. In section 2126 it appears conclusively that the defendant may not be tried again if he has been discharged during the progress of the trial or after the case has been submitted to the jury, although the jury may have been discharged or prevented from giving a verdict by reason of an accident or other cause. Such a discharge of the prisoner amounts to an acquittal and brings him within the provision of section 1356, although there has not been any judgment of acquittal as mentioned in section 1940. Section 2126 seems to expressly provide for the case now under consideration, for it says that in all cases of a disagreement of a jury, the prisoner may be tried again, unless he has been discharged as aforesaid. In case of the discharge of the jury for disagreement, as in the case of granting a new trial, the jeopardy is the same continuing jeopardy from the beginning of the trial after the swearing in of the first jury, until the particular same case is *516determined. There is only one jeopardy; a second jeopardy can only be pleaded in another case. A new trial is the reexamination of the facts under the same plea of not guilty, on the same information or indictment.
Certainly, there has not been any judgment of conviction or acquittal in the case before us. There has not been any conviction without a judgment. Has there been an acquittal without a judgment? What is an acquittal? The appellant certainly has not been adjudged to be acquitted. This question is not the simple one that it appears to be. The word “acquittal” is said to be “verbum equivocum.” For some of the equivocations, see Words and Phrases, volume 1, page 114. The definition expressed or implied in our former opinion in this case is too narrow, although supported by authority. We consider that one is acquitted if, after he has been arraigned and the trial has been begun upon a valid indictment or information, he is discharged by a competent court before verdict. (Penal Code, see. 2126.) He has been in jeopardy. Such is not the situation in the case before us.
We are also of the opinion that after a verdict or a judgment of conviction or acquittal, the defendant in a criminal case has been in jeopardy and may not be tried again for the same offense, except in a case of a new trial which has been granted or ordered. The jeopardy which is forbidden is a new jeopardy. In the case before us the defendant, when he went to trial the third time, was in the same jeopardy that he was in when the first trial was had. The continuance of the jeopardy is not a new jeopardy. A mistrial or a new trial secured by plaintiff or defendant continues the jeopardy and does not renew - it. If this cov,rt was correct in the two eases in which new trials were ordered in criminal cases on appeal by the prosecution (State v. Herron, 12 Mont. 230, 300, 30 Pac. 140; State v. Mjelde, 29 Mont. 490, 75 Pac. 87), then, on a new trial, the jeopardy would not be a new one but a continuation of the old danger. (This remark is made by the writer of this opinion on his sole responsibility, and not with the concurrence of the other *517members of the court. He has now a doubt as to the logic and correctness of those two opinions, in the latter of which he concurred.)
In the Perez Case cited, the federal supreme court decided that when a court discharged a disagreeing jury in a capital case, the defendant was not put again into jeopardy on a new trial. It made no exception in a supposed case of abuse of discretion. This decision of the highest court of the country is strongly persuasive. Section 2126 settles it.
The defendant here was not acquitted. He was not twice put in jeopardy. There was not a new jeopardy. The record of the court as to the discharge of the jury was statutory and sufficient as to the reason why the jury was discharged and as to the necessity for discharging them.
Mr. Justice Holmes in his dissenting opinion in Kepner v. United States, 195 U. S., at page 134, 24 Sup. Ct. 797, 49 L. Ed. 126, while being of the opinion that the defendant should have stood convicted on the trial by the Philippine appellate court, lays down certain general principles applicable to all cases. Pie says: “It seems to me that logically and rationally a man cannot be said to be more than once in jeopardy in the same cause, however often he may be tried. The jeopardy is one continuing jeopardy from its beginning to the end of the cause. Everybody agrees that the principle in its origin was a rule forbidding a trial in a new and independent case where a man already had been tried once. But there is no rule that a man may not be tried twice in the same case. It has been decided by this court that he may be tried a second time, even for his life, if the jury disagree. (United States v. Perez, 9 Wheat. 579. See Simmons v. United States, 142 U. S. 148; Logan v. United States, 144 U. S. 263; Thompson v. United States, 155 U. S. 271.)”
The former opinion herein is modified to conform to the views herein expressed, and the motion for rehearing is denied.
Rehearing denied.
Mr. Justice Holloway concurs.