option. It was then, and for months prior thereto had been, in possession. The complaint in this suit was filed two days later. It is therefore manifest that possession was not taken under the option contract, and with respondent's consent, but that it was taken and was continued with her consent under the lease contract; that the part performance must have reference to the one agreement relied upon for specific performance is not only sustained by the authorities, but is founded in fundamental and ordinary reasoning."

Vogt v. Mullin (1914) 82 N. J. Eq. 452, 89 Atl. 533, a case not within the scope of the annotation, involved a bill for specific performance, the bill alleging a written agreement to convey land by deed of warranty, free from encumbrance, and stating that the land in question was subject to a right of way, mention of which, it was

charged, was omitted by mistake. With respect to the application of the Statute of Frauds, the court said in part: "But the complainant attempts to show part performance. He alleges that the purchaser took a five years' lease contemporaneously with the agreement of purchase, and he alleges an entry under the lease. I have in the case of Mullin v. Vogt, just decided, stated that, in my view, the two papers are distinct. Not being interdependent, part performance of the lease is not part performance of the agreement. Even if they could be taken as one, there would have to be shown not only part performance of their written terms and stipulations, but also part performance of the parol agreement. No such part performance is shown. There is nothing in the lease that requires the landlord to give a term that shall be freed from the easement." R. S.

V.

pleading

Criminal law, § 150 demurrer former jeopardy. 4. Demurrer does not lie to a good plea of former jeopardy in a criminal

parte McLaughlin, 41 Cal. 211, 10 Am. Rep. 272; Com. v. McCormick, 130 Mass. 61, 39 Am. Rep. 423; State v. Barnes, 54 Wash. 493, 23 L.R.A. (N.S.) 932, 103 Pac. 792; Cóm. v. Fitzpatrick, 121 Pa. 109, 1 L.R.A. 451, 6 Am. St. Rep. 757, 15 Atl. 466, 7 Am. Crim. Rep. 199; Fails v. State, Ann. Cas. 1912B, 1146 and note, 60 Fla. 8, 53 So. 612; Andrews v. State, Ann. Cas. 1914B, 760 and note, 174 Ala. 11, 56 So. 998; State v. Duvall, L.R.A. 1916E, 1264, and note 1273, 135 La. 710, 65 So. 904; Hedger v. State, 144 Wis. 279, 128 N. W. 80.

If a defendant consents to the declaration of mistrial he cannot later successfully urge former jeopardy.

People v. Fishman, 64 Misc. 256, 119 N. Y. Supp. 89; Stone v. State, 135 Am. St. Rep. 69 and note, 160 Ala. 94, 49 So. 823; Andrews v. State, Ann. Cas. 1914B, 775, note; Oborn v. State, 143 Wis. 249, 31 L.R.A. (N.S.) 966, 126 N. W. 737.

Character evidence should be restricted to the particular trait in is

sue.

Underhill, Crim. Ev. § 77; 2 Bishop, New Crim. Proc. 2d ed. p. 955; Kahlenbeck v. State, 119 Ind. 118, 21 N. E. 460; State v. Dexter, 115 Iowa, 678, 87 N. W. 417; People v. Fair, 43 Cal. 137; Gandolfo v. State, 11 Ohio St. 114; Westbrooks v. State, 76 Miss. 710, 25 So. 491; Griffin v. State, 14 Ohio St. 55; State v. Bessa, 115 La. 259, 38 So. 985; State v. Griggsby, 117 La. 1046, 42 So. 497; Hurst v. Robinson, 53 Am. Dec. 134 and note, 13 Mo. 82; McQuiggan v. Ladd, 14 L.R.A. (N.S.) 689 and note, 79 Vt. 90, 64 Atl. 503; 1 Whart. Crim. Ev. 1007; 3 Enc. Ev. p. 20; 1 Greenl. Ev. 13th ed. §§ 54, 55; 2 Greenl. Ev. §§ 25, 26; 8 R. C. L. 208, § 203; State v. Curran, 51 Iowa, 112, 49 N. W. 1006, 3 Am. Crim. Rep. 405; Coffee v. State, 1 Tex. App. 548; Jones v. State, 10 Tex. App. 552.

Where the evidence is in direct conflict, and nothing appears to indicate that the jury was actuated by improper influence, or that it acted under a mistake, and the credited evidence is not inherently impossible, the court should not invade the province of the jury and interfere with the verdict.

People v. Chalmers, 5 Utah, 201, 14 Pac. 131; United States v. Daubner, 17 Fed. 793; Douglass v. Tousey, 20 Am. Dec. 616 and note, 2 Wend. 352; Baker v. Briggs, 8 Pick. 122, 19 Am.

Dec. 311; Briscoe v. Bronaugh, 1 Tex. 326, 46 Am. Dec. 108; Bergh v. Spivakowski, 86 Conn. 98, 41 L.R.A. (N.S.) 855, 84 Atl. 329; Mooney v. People, 111 Ill. 388; 20 R. C. L. 278; 3 Whart. Crim. Proc. 10th ed. p. 2200; 1 Whart. Crim. Ev. 10th ed. § 384.

Thurman, J., delivered the opinion of the court:

The defendant was convicted in the district court of Salt Lake county of the crime of indecent assault, as defined in Utah Comp. Laws 1917, § 8049, and sentenced to a term of imprisonment in the state prison. No exception was taken to the information. Defendant was arraigned thereon, and pleaded not guilty. A jury was regularly impaneled and sworn to try the cause. After several days devoted to the taking of testimony, information was conveyed to the presiding judge by one of the jurors sworn in the case, to the effect that he had been communicated with concerning the case by a person not connected therewith. The judge immediately brought the matter to the attention of counsel for the respective parties, and, after an investigation of the matter, the court ordered a mistrial, and discharged the jury. Specific details as to what occurred in the investigation will appear later on.

At the next term of court, the case again came on for trial on the same information, whereupon the defendant entered the following plea: "Now comes C. C. Thompson, defendant, in his own proper person, into court here, and, having heard the information read, says that the state of Utah ought not further to prosecute said information against him, because at the September, 1919, term of the district court of the third judicial district in and for the county of Salt Lake, the district attorney of said district, duly authorized by law so to do, presented defendant the aforesaid information against him for the same offense with which the defendant is now charged; that said defendant was duly arraigned in said court on said information, and pleaded not guilty

case,

thereto; that thereupon a jury was duly impaneled and sworn in said cause in said court, and the trial proceeded with and testimony taken on the part of the state and on part of the defendant, when said jury were discharged by the court upon the ground that the jury had received out of court, after being so duly impaneled, and after said trial had been proceeded with, evidence other than that resulting from a view of the premises and a communication referring to said which discharge was without the consent of the defendant, and before agreement upon a verdict, and without disagreeing, and without special necessity for such discharge, and the said defendant says that he has been once in jeopardy upon the said information, and cannot, under the Constitution and by the laws of the state of Utah, be again tried under said information, or for the offense therein set out. Wherefore the defendant prays judgment of the court that he may be dismissed and discharged."

To this plea the state interposed an oral demurrer, and also a motion to strike. The motion to strike was denied, but the demurrer was sustained. The specific grounds of the demurrer do not appear in the record, but we are justified in assuming that the contention was that the facts stated were insufficient to constitute a plea of "once in jeopardy." The defendant excepted to the ruling of the court sustaining the demurrer. The trial of the case thereafter proceeded, resulting in a conviction, as before stated. Judgment was entered thereon, from which judgment defendant appeals.

1. Appellant assigns as error the ruling of the court sustaining the demurrer to his plea of "once in jeopardy." We have felt somewhat embarrassed in our endeavor to determine this question, because of the peculiar angle from which the question appears to have been considered by counsel on both sides of the controversy.

When the sufficiency of a plead

ciency should be determined. If we are right in our interpretation of the record in the present case, evidence of what occurred in court before the plea in bar was entered, during the investigation heretofore referred to, was offered and received upon the question as to whether or not the plea was justified, and the evidence so taken must have been considered by the court in determining the question raised by the demurrer. We feel warranted in indulging in this assumption, for otherwise we do not understand upon what theory the demurrer could have been sustained. The demurrer admits the facts alleged in the plea. The facts pleaded clearly show that at a previous term of the same court the defendant was duly arraigned on the same information, on which arraignment he pleaded not guilty; that a jury was duly impaneled and sworn in said court and cause, and testimony taken on the part of both the state and the defendant; that said jury was discharged by the court on the ground that, after being duly impaneled, and after the trial had commenced, the jury had received, out of court, evidence other than that resulting from a view of the premises and a communication referring to said cause; that the discharge of said jury was without the consent of defendant, and without "special necessity," and before an agreement upon a verdict or disagreement thereon. The plea expressly alleges that the defendant had been once in jeopardy upon the same information. Defendant invokes the Constitution and laws of the state against being tried again for the same offense, and prays that he be discharged.

The most serious objection to the plea is that it abounds in superfluity and excessive verbiage. Utah Comp. Laws 1917, § 8899, subd. 4,

provides the form of a plea of "once in jeopardy:" "If he pleads once in jeopardy: "The defendant pleads that he has been once in jeopardy for the offense charged (specifying the time, place, and court'").

All of this the defendant pleaded, and much more. The question is, Did he plead himself out of court by alleging facts which nullified the effect intended? If not, the superfluous matter should have been disregarded and the plea sustained.

Criminal lawwhen accused is in jeopardy.

There is no disagreement between counsel for the defendant and the state concerning the proposition as to when jeopardy attaches in a case where the jury is impaneled to try the cause. The defendant is in jeopardy when the jury is impaneled and sworn and the issues presented on a valid indictment or information in a court of competent jurisdiction. The doctrine is tersely stated by the supreme court of California in People v. Webb, 38 Cal. 467. The third headnote reads: "If a party is once placed upon his trial before competent court and jury, upon a valid indictment, the 'jeopardy' attaches, to which he cannot again be subjected, unless the jury be discharged from rendering a verdict by a legal necessity, or by his consent; or, in case a verdict is rendered, it be set aside at his instance."

To the same effect is People v. Horn, 70 Cal, 17, 11 Pac. 470. This statement of the proposition is almost a perfect model of brevity and conciseness.

Defendant's plea of "once in jeopardy" in the instant case alleges, among other things, that the jury was discharged without his consent, and that there was no "special necessity" therefor. These, together with the other matters alleged, constitute a good plea of "once in jeopardy." It follows, therefore, that

taining the demurrer was one of which defendant can complain is a subject of serious controversy between the parties.

Utah Comp. Laws 1917, § 8924, provides that issues of fact arise: (1) Upon a plea of not guilty; (2) upon a plea of former conviction or acquittal; (3) upon a plea of once in jeopardy. The next succeeding section provides that issues of fact must be tried by a jury unless a trial by jury be waived as therein provided. If the circumstances constituting the basis of defendant's plea of "once in jeopardy" involve issues of fact, then such issues should have been tried by the jury. If the circumstances relied on by defendant present only issues of law, then it was the duty of the court to try such issues, and, if properly determined against the defendant, the error of the court in sustaining the demurrer to the plea would be harmless.

In order to determine whether or not there was an issue of fact which should have been submitted to the jury, it becomes necessary at this point to state the circumstances upon which defendant relies for the basis of his plea. It is not necessary to mention the names of persons involved, except those of counsel participating in the investigation.

After the first trial, as heretofore stated, had proceeded for several days, one of the jurors sworn in the case informed the presiding judge that he had been approached by a gentleman with whom he was acquainted and was asked by him, "Who is on trial in this court?" The gentleman then looked and saw the defendant, and said, "Oh! Thompson is on trial." The juror made no reply. The gentleman then said, "I think a charge of this kind is a great shame." The juror said: "Yes, if a man is guilty it is a shame, and if he is innocent it is a shame for him to be charged with that crime." The gentleman then said, in effect, that he had known the defendant casually for many