On Petition for Rehearing
GIVENS, Chief Justice.Appellant in his petition for rehearing rather ingeniously argues that the discharge of the jury in the first trial when they could not agree, neither appellant nor his attorney being present, so altered the case there should have been a re-arraignment.
When the case was called for trial the second time, resulting in appellant’s conviction, the record shows the Clerk read the information to the jury and stated the plea of the defendant of “not guilty.”
Without apparent exception, the courts have held that a plea of former jeopardy or former acquittal is not covered by the plea of “not guilty,” but they are special pleas and must be interposed as such. There was, thus, at the inception of the second trial ample opportunity for appellant to have interposed the plea he now contends should be entertained, though never interposed, not mentioned in his motion for a new trial and not even suggested until at the time of the sentence.
*124Appellant relies strongly on Courtney v. State, 41 Okl.Cr., 30, 269 P. 1059, at page 1060. In Daniels v. State, 55 Okl.Cr., 298, 29 P.2d 997, a later case, during the impaneling of the jury and obviously after arraignment, circumstances arose which defendant deemed would support a claim of former jeopardy. The court held that because he had without protest permitted the jury to be impaneled and sworn and proceeded with the trial, he had thereby waived his right to claim former jeopardy and that his objection came too late; thus recognizing that without re-arraignment the plea could and should have been interposed. This case was followed and quoted with approval in Kennamer v. State, 59 Okl.Cr., 146, 57 P.2d 646, at page 662, on this point. Hughes v. State, 83 Okl.Cr., 16 172 P.2d 435, at page 438.
To the same effect and particularly with regard to appellant’s claim that the discharge of the jury violated his fundamental, constitutional right, holding that such contention must be raised and if not properly raised, is waived, Coppage v. State, 62 Okl. Cr., 325, 71 P.2d 509, at page 513.
To avail appellant, such bar must be presented before going to trial, Stough v. State, 75 Okl.Cr. 62, 128 P.2d 1028.
The facts and disposition of the case in the following are so closely in point as to justify quotation therefrom:
“ * * * The first contention of former jeopardy and that appellant previously had been discharged on that count was made after the motion for a new trial had been, filed on November 8, 1939. The only complaint made was on motion in arrest of judgment filed December 4, 1939. The motion for a new trial was overruled December 6, 1939. We are advised the motion in arrest of judgment is still pending. The immunity from second jeopardy granted by the Constitution (Const. Bill of Rights, § 10) to one accused of crime is a personal privilege which may be waived and which appellant did waive in the instant case. State v. White, 71 Kan. 356, 80 P. 589, & Ann.Cas. 132; State v. Ford, 117 Kan. 735, 232 P. 1023. In the Ford case it was said: ‘Moreover a motion in arrest of judgment can raise but two questions, neither of which is here involved — whether the court has jurisdiction and whether the information states a public offense. State v. Yargus, 112 Kan. 450, 211 P. 121, 27 A.L.R.. 1093. The defense of second jeopardy may be waived, and is waived by the defendant’s, going to trial on the merits without urging it, taking the chance of a favorable verdict. State v. White, 71 Kan. 356, 80 P. 589, 6. Ann.Cas. 132; see, also, 16 C.J.S.Constitutional Law, § 619, page 1254.' 117 Kan. at page 736, 232 P. at page 1024.
“In the White case it was stated: ‘Failing to interpose an objection to entering upon a second trial he must be held to' have waived the right to do so, and must abide the result which he invited. State v. Durein [70 Kan. 1], 78 P. 152 [15 L.R.A., N.S., 908].
*125“ ‘ “To allow a defendant, as was done in this case, to sit idly by during the progress of his trial, and then, upon conviction, set up, upon motion in arrest of judgment or for a new trial, a special defense that he could have raised at the very inception of the trial, would be to sanction a practice which might well be termed trifling with the court.” People v. Bennett, 114 Cal. 56, 58, 45 P. 1013.’ 71 Kan. at page 360, 80 P. at page 590, 6 Ann.Cas. 132.” State v. Maxwell, 151 Kan. 951, 102 P.2d 109, at page 117, 128 A.L.R. 1315.
Petition for rehearing denied.
PORTER, TAYLOR, THOMAS, and KEETON, JJ., concur.