— Indictment for embezzlement; conviction; sentence for two years, and appeal.
In State v. Huffman, 136 Mo. 58, it was ruled that where a plea in bar of a former acquittal is interposed, there the accused was entitled to a jury trial on such plea in bar. This; ruling was followed in State v. Hatcher, Ibid, 641. The foregoing decisions announced the rule for this case, which presents a similar state of facts. Here the State put the facts set up in the plea directly in issue by its replication.
This case, therefore, does not at all resemble those where the plea in bar is adjudicated insufficient in law on demurrer thereto, as, for instance, in the cases of State v. Williams, 152 Mo. 115, and State v. Goddard, 162 Mo. 198.
And, under the provisions of section 693, Revised Statutes 1899, a jury trial is only deemed to be waived in the following cases:
“Eirst, by failing to appear at the trial; second, by written consent, in person or by attorney, filed with the clerk; third, by oral consent in court, entered on the minutes.” There is no such waiver here.
Eor the foregoing reasons, judgment reversed and cause remanded.