Arnold, C. J.,
delivered the opinion of the court.
The record proper, shows in regard to the discharge of the jury, that after they retired to consider of their verdict, they came into open court and reported, that they could not agree on a verdict, ■and that therefore they were discharged, and that the defendant, appellant here, objected to their being discharged.
In the absence of proof to the contrary, the action of the court in discharging the jury, would be presumed to be correct. Price v. The State, 36 Miss. 531. But the so-called bill of exceptions is no-part of the record, and the motion to strike it from the record,, should have been sustained. On the pro.of, it cannot be regarded as a bill of exceptions. Code, § 1715 et seq. It was not prepared or tendered to the presiding judgé, by the defendant, or in his behalf, nor was it approved or assented to by him or his counsel. It is nothing more than a note or memorandum made by the judge, and it cannot be used as evidence for any purpose.
The demurrer to the plea of former jeopardy, should have been overruled, and the state should have replied, instead of demurring [545]*545to the plea. The plea of former jeopardy, is a plea in bar, and the same degree of certainty is not required in it, as in an indictment or a dilatory plea. 1 Bish. Cr. Pro., §§ 324, 745, 808. Courts are not fully agreed how far the defense of former jeopardy differs under our American constitutions, from that of autrefois acquit or convict at common law. When the first trial is concluded, and results either in an acquittal or conviction, which is allowed to stand, there is no room for diversity of opinion as to its sufficiency to bar another trial. In such case, the ordinary plea of former acquittal or conviction, is applicable in terms, and would be sustained by all courts. But wm reach debatable ground when we come to those cases, in which the trial was begun, but not concluded, when the jury was discharged. without verdict, and without the consent of the prisoner.
We do not consider the dictum in the dissenting opinion in Hare v. The State, 4 How. (Miss.) 187, as authority on the subject, of what a plea of former jeopardy, should contain; and some of the language used on the subject, in Price v. The State, 36 Miss. 531, is broader than was warranted by the facts of the case, as was noted in the decision in Teat v. The State, 53 Miss. 439.
In the common law plea of autrefois acquit or autrefois convict, it is necessary to set out the record of the former proceedings, and it seems that nothing short of a showing thereby of former acquittal or conviction, will sustain the plea. 1 Bish. Cr. Pro., §§ 814, 815. But under a constitution like our own, which enlarges the safeguards of the common law, against the repetition of criminal prosecutions for the same offense, there may be, according to the decisions in this, and other states, former jeopardy, without an actual or formal acquittal or conviction, and when this is the case, it is not necessary to aver former acquittal or conviction, in a plea of former jeopardy. 1 Bish. Cr. Pro., §§ 827-829 ; 1 Whart. Cr. L., § 591 h; Lyman v. The State, 47 Ala. 686 ; Atkins v. The State, 16 Ark. 568.
Nor is it necessary in such plea, to set out the record of the former proceedings. It is sufficient to state the facts which constituted the former jeopardy. 1 Whart. Cr. L., § 591 h; 1 Bish. [546]*546Cr. Pro., §§ 828, 829; Lyman v. The State, 47 Ala. 686; Atkins v. The State, 16 Ark. 568; McCauley v. The State, 26 Ala. 135; Grant v. The People, 4 Parker Cr. Rep. 527 ; Nolan v. The State, 55 Ga. 521; Robinson v. Com., 32 Gratt. 866.
Wharton, says, that an allegation that “the defendant had once been put in jeopardy of his life, for said offense, upon said indictment, is demurrable, if it does not show how or in what manner : otherwise, if the facts constituting the jeopardy are alleged.” 1 Whart. Cr. L., § 591 h.
Bishop says, that “ among courts that do not deem the plea of autrefois acquit permissible, some allow to the defendant a plea framed on the sjiecial factsj in the nature of autrefois acquit. There are various cases in which this method has been adopted unquestioned. In principle it is plainly permissible, and there is believed to be not much direct authority against it.”
“ This plea, it has been deemed, should aver that the defendant was put on his trial, on a valid indictment, that a jury was duly impaneled and sworn and charged with the case, and was without necessity or his consent, discharged without rendering a verdict.” 1 Bish/Cr. Pro., §§ 828, 829.
The facts stated in the plea under consideratiou — that at a former term of the court the defendant was put on trial, on a valid indictment set out in the plea, for the same offense, and that after the cause was duly submitted to a jury, impaneled and sworn to try the same, the jury before rendering a verdict, and without the consent of the defendant, were discharged, because they had not agreed on a verdict at the time they were discharged, and because the regular term of the court had expired, and that the discharge of the jury was not caused by any physical or legal necessity — cannot be met or disposed of against the prisoner by demurrer. If these facts are admitted to be true, as they are by demurrer, the prisoner cannot be lawfully tried again for the offense with which he is charged.
The constitution declares, that “ no person’s life or liberty, shall be twice placed in jeopardy for the same offense.” Constitution of Miss. art. I, § 5. A party is placed in jeopardy, within the [547]*547meaning of the constitution, whenever upon a valid indictment, in a court of competent jurisdiction, and before a legally constituted jury, his trial has been fairly commenced, and if afterward the jury before rendering a verdict, is unlawfully discharged, without his consent, it operates as an acquittal and shields the prisoner from further prosecution or trial for the same offense. But if the jury is discharged in such case on account of some physical or legal necessity, such as the sickness or death of the judge or a juror, or the failure of the jury to agree on a verdict after reasonable time for deliberation, there is no ground for the prisoner on a subsequent trial to complain of former jeopardy. Whitten v. The State, 61 Miss. 717 ; Teat v. The State, 53 Ib. 439.
It is overruling necessity that justifies the discharge of a jury in a criminal cause, before verdict and without the consent of the prisoner. What length of time a jury should bo allowed or required to deliberate before the court would be warranted in discharging them on the ground that they cannot agree on a verdict, must depend, to some extent, on the facts and circumstances of each ■case. It should always be long enough to demonstrate beyond reasonable doubt the necessity of the discharge. The length of time which the plea shows the jury was in deliberation in this case would ordinarily be prima fade
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Arnold, C. J.,
delivered the opinion of the court.
The record proper, shows in regard to the discharge of the jury, that after they retired to consider of their verdict, they came into open court and reported, that they could not agree on a verdict, ■and that therefore they were discharged, and that the defendant, appellant here, objected to their being discharged.
In the absence of proof to the contrary, the action of the court in discharging the jury, would be presumed to be correct. Price v. The State, 36 Miss. 531. But the so-called bill of exceptions is no-part of the record, and the motion to strike it from the record,, should have been sustained. On the pro.of, it cannot be regarded as a bill of exceptions. Code, § 1715 et seq. It was not prepared or tendered to the presiding judgé, by the defendant, or in his behalf, nor was it approved or assented to by him or his counsel. It is nothing more than a note or memorandum made by the judge, and it cannot be used as evidence for any purpose.
The demurrer to the plea of former jeopardy, should have been overruled, and the state should have replied, instead of demurring [545]*545to the plea. The plea of former jeopardy, is a plea in bar, and the same degree of certainty is not required in it, as in an indictment or a dilatory plea. 1 Bish. Cr. Pro., §§ 324, 745, 808. Courts are not fully agreed how far the defense of former jeopardy differs under our American constitutions, from that of autrefois acquit or convict at common law. When the first trial is concluded, and results either in an acquittal or conviction, which is allowed to stand, there is no room for diversity of opinion as to its sufficiency to bar another trial. In such case, the ordinary plea of former acquittal or conviction, is applicable in terms, and would be sustained by all courts. But wm reach debatable ground when we come to those cases, in which the trial was begun, but not concluded, when the jury was discharged. without verdict, and without the consent of the prisoner.
We do not consider the dictum in the dissenting opinion in Hare v. The State, 4 How. (Miss.) 187, as authority on the subject, of what a plea of former jeopardy, should contain; and some of the language used on the subject, in Price v. The State, 36 Miss. 531, is broader than was warranted by the facts of the case, as was noted in the decision in Teat v. The State, 53 Miss. 439.
In the common law plea of autrefois acquit or autrefois convict, it is necessary to set out the record of the former proceedings, and it seems that nothing short of a showing thereby of former acquittal or conviction, will sustain the plea. 1 Bish. Cr. Pro., §§ 814, 815. But under a constitution like our own, which enlarges the safeguards of the common law, against the repetition of criminal prosecutions for the same offense, there may be, according to the decisions in this, and other states, former jeopardy, without an actual or formal acquittal or conviction, and when this is the case, it is not necessary to aver former acquittal or conviction, in a plea of former jeopardy. 1 Bish. Cr. Pro., §§ 827-829 ; 1 Whart. Cr. L., § 591 h; Lyman v. The State, 47 Ala. 686 ; Atkins v. The State, 16 Ark. 568.
Nor is it necessary in such plea, to set out the record of the former proceedings. It is sufficient to state the facts which constituted the former jeopardy. 1 Whart. Cr. L., § 591 h; 1 Bish. [546]*546Cr. Pro., §§ 828, 829; Lyman v. The State, 47 Ala. 686; Atkins v. The State, 16 Ark. 568; McCauley v. The State, 26 Ala. 135; Grant v. The People, 4 Parker Cr. Rep. 527 ; Nolan v. The State, 55 Ga. 521; Robinson v. Com., 32 Gratt. 866.
Wharton, says, that an allegation that “the defendant had once been put in jeopardy of his life, for said offense, upon said indictment, is demurrable, if it does not show how or in what manner : otherwise, if the facts constituting the jeopardy are alleged.” 1 Whart. Cr. L., § 591 h.
Bishop says, that “ among courts that do not deem the plea of autrefois acquit permissible, some allow to the defendant a plea framed on the sjiecial factsj in the nature of autrefois acquit. There are various cases in which this method has been adopted unquestioned. In principle it is plainly permissible, and there is believed to be not much direct authority against it.”
“ This plea, it has been deemed, should aver that the defendant was put on his trial, on a valid indictment, that a jury was duly impaneled and sworn and charged with the case, and was without necessity or his consent, discharged without rendering a verdict.” 1 Bish/Cr. Pro., §§ 828, 829.
The facts stated in the plea under consideratiou — that at a former term of the court the defendant was put on trial, on a valid indictment set out in the plea, for the same offense, and that after the cause was duly submitted to a jury, impaneled and sworn to try the same, the jury before rendering a verdict, and without the consent of the defendant, were discharged, because they had not agreed on a verdict at the time they were discharged, and because the regular term of the court had expired, and that the discharge of the jury was not caused by any physical or legal necessity — cannot be met or disposed of against the prisoner by demurrer. If these facts are admitted to be true, as they are by demurrer, the prisoner cannot be lawfully tried again for the offense with which he is charged.
The constitution declares, that “ no person’s life or liberty, shall be twice placed in jeopardy for the same offense.” Constitution of Miss. art. I, § 5. A party is placed in jeopardy, within the [547]*547meaning of the constitution, whenever upon a valid indictment, in a court of competent jurisdiction, and before a legally constituted jury, his trial has been fairly commenced, and if afterward the jury before rendering a verdict, is unlawfully discharged, without his consent, it operates as an acquittal and shields the prisoner from further prosecution or trial for the same offense. But if the jury is discharged in such case on account of some physical or legal necessity, such as the sickness or death of the judge or a juror, or the failure of the jury to agree on a verdict after reasonable time for deliberation, there is no ground for the prisoner on a subsequent trial to complain of former jeopardy. Whitten v. The State, 61 Miss. 717 ; Teat v. The State, 53 Ib. 439.
It is overruling necessity that justifies the discharge of a jury in a criminal cause, before verdict and without the consent of the prisoner. What length of time a jury should bo allowed or required to deliberate before the court would be warranted in discharging them on the ground that they cannot agree on a verdict, must depend, to some extent, on the facts and circumstances of each ■case. It should always be long enough to demonstrate beyond reasonable doubt the necessity of the discharge. The length of time which the plea shows the jury was in deliberation in this case would ordinarily be prima fade sufficient to authorize their discharge, where it appeared that they were discharged because they could not agree on a verdict, but when, considered in connection with the other facts averred in the plea and admitted by •demurrer to be true, it cannot be said as matter of law that a legal necessity existed for discharging the jury, or that they were discharged because they could not agree on a verdict.
It was held in Josephine v. The State, 39 Miss. 613, that where the term of the court is about to expire, and the jury is unable to agree on a verdict, they may be discharged without the consent of the prisoner; but it was decided in Whitten v. The State, 61 Miss. 717, that this rule does not prevail under the present code, § 2292 ■of which provides that “ when the trial or hearing of any cause, •civil or criminal, has been commenced, and is in progress in any court, and the time for the expiration of the term as prescribed by [548]*548law shall arrive, the court may proceed with such trial or hearing and bring it to a conclusion, in the same manner and with the same effect as if the stated term had not expired.”
The judgment is reversed, the motion to strike the so-called bill of exceptions from the record is sustained, the demurrer to the plea of former jeopardy is overruled, and leave granted to the state to reply to-the plea, and the cause remanded.
T. M. Miller, attorney-general, for the state, filed a suggestion of error, making the following points :
1. When the court decided that the time stated in the defendant’s plea during which the jury were in deliberation was prima facie sufficient to authorize their discharge, it should have followed that the demurrer to this plea was properly sustained. No facts are pleaded to meet this prima facie case, but ouly the statement of a conclusion of law, that the “ discharge of said jury was not compelled by any physical or legal necessity.”
Should the state be required to take issue on such an averment t Should an issue of law be submitted to the jury?
2. The court will look to the whole record in determining whether error has been committed to the prejudice of the defendant. This being done, the court is bound to know here that the jury were discharged after a protracted deliberation, and after coming into court and reporting that they could not agree upon a verdict, and thereupon it was considered by the court that they be discharged.
While these recitals are not conclusive ou the defendant, still a plea ought not to be entertained which does not negative the facts of record which are prima facie to be regarded as established.
The suggestion of error was
Denied.