Sunday-deliv was dated on another day, made it a Sunday contract, ery of insurance and unenforceable. policy on-effect. Counsel for plaintiff undertake to sustain the validity of the delivery on the ground that it constituted a bailment, but the policy is the written evidence of the contract, and is not, in any sense, as between the insurer and the insured, a bailment. It is contended that, as between the assured and Humphries, the redelivery of the policy to the insurance policy latter was a mere bailment, but the answer to this contention is that the question of redelivery of the policy to Humphries is not the turning point of this case, for that is not the act upon which the validity of the contract depends. The case is the same as if the policy had been kept by Mason himself when offered to him by Humphries, and the question is whether or not this was a valid delivery. Bailment-of -effect. Sunday-ratifi contract. The trial court was correct, as an abstract proposition of law, in holding that a Suncation of Sunday day contract may be subsequently ratified. We have so held in the many decisions of this court on the subject, beginning with Tucker v. West, supra, and coming down to the latest case on that subject, Planters Fire Ins. Co. v. Ford, 106 Ark. 568, 44 L.R.A. (N.S.) 289, 153 S. W. 810. There is, however, no fact or circumstance in this case which can justify the inference of a ratification of the unlawful delivery on Sunday. The undisputed facts are that, after the alleged delivery of the policy on Sunday afternoon, Mason left it in the hands of Humphries and at once returned to his farm, where he remained until he was shot and killed, about 9 o'clock the next morning. The mere retention of the policy, even by the assured himself, for an unappreciable length of time after the passing of the Sunday on which it was delivered would case could not come under that rule. There was no opportunity to either ratify or disaffirm the illegal delivery. If it be held that the short time in this case was sufficient, it would necessarily result that, if there was no repudiation one hour or one minute after the expiration of the Sabbath day, it would constitute a ratification. The policy itself being yet in the hands of Humphries, and he being still the agent of the insurer, even though the illegal delivery had been constructively made, he repudiated the delivery by returning the policy to the insurer. We think there was no valid delivery or ratification under the undisputed facts, and the court erred in submitting to the jury the question of ratification. Finally, it is contended by counsel for plaintiff that the question of the illegality of the delivery was not raised in the pleadings. This contention is unsound, for the reason that the denials of the answer were as broad as the allegations of the complaint, and distinctly put in issue the question whether or not there had been a contract entered into between the parties. As before stated, it was part of the plaintiff's case under the pleadings to show, notwithstanding the fact that the policy was not in possession of the plaintiff, nor in the possession of the assured at the time of his death, there was one duly issued and put in force by the defendant; and when the proof introduced showed that the alleged delivery upon gality of conwhich the plaintiff tract-suffidepended to make Pleading-ille ciency. out a case was on Sunday, her case failed unless she further proved (— Ark. —, that there was a subsequent ratification. It follows from what we have said that the evidence in the case shows that the plaintiff was not entitled to recover, so the judgment must be reversed and the cause dismissed. ANNOTATION. Effect of delivery of insurance policy on Sunday. No decision other than the reported case (NEW YORK L. INS. Co. v. MASON, ante, 618) seems to have passed directly on the effect of the delivery of an insurance policy on Sunday. It is therein held that since, by the local law, all contracts executed on Sundays are void, the delivery on Sunday of a policy which, under the stipulations contained in the application, is not to take effect as a contract of insurance until it is delivered, makes it a Sunday contract, and unenforceable, though the policy is dated on another day. The validity of the policy was sought to be sustained on the ground that it constituted a bailment, but the court disposes of this contention with the observation that the policy did not, in any sense, constitute the subjectmatter of a bailment, it being merely the written evidence of the contract. While not strictly within the scope of the present annotation, the case of Frame v. Sovereign Camp, W. W. (1896) 67 Mo. App. 127, determines an analogous question. In that case a member of a benefit society was re instated on a Sunday. It being the It is suggested that the reinstatement A. S. M. 1. Conviction of larceny is no defense to a prosecution for burglary in breaking and entering the building where the stolen goods were kept, with intent to steal them. [See note on this question beginning on page 626.] 4 APPEAL by defendant from a judgment of the Circuit Court for Delaware County (Thompson, J.) convicting him of burglary. Affirmed. The facts are stated in the opinion of the court. Messrs. Gene Williams and Rollin W. Lennington, for appellant: The conviction of defendant, and sentence and judgment, for commission of larceny, embracing the same transaction as the burglary, was a waiver of the right of the state to prosecute later for burglary for the same transaction. Hickey v. State, 23 Ind. 21; Bonsall v. State, 35 Ind. 462; Fleming v. State, 174 Ind. 264, 91 N. E. 1085; People v. Smith, 57 Barb. 46. A demurrer to a plea or special answer admits the truth of all matter well pleaded therein. Williams v. State, 188 Ind. 283, 123 N. E. 209. When the trial court discharged the jury after they had been sworn to try the cause and after the witnesses had also been sworn, over the objection of the defendant and without the consent of the defendant, this was a bar to another prosecution for the same offense. State v. Reed, 168 Ind. 588, 81 N. E. 571; Gillespie v. State, 168 Ind. 298, 80 N. E. 829; Miller v. State, 8 Ind. 325; Harker v. State, 8 Blackf. 540; Morgan v. State, 13 Ind. 215; Wright v. State, 5 Ind. 290, 61 Am. Dec. 90; Boswell v. State, 111 Ind. 47, 11 N. E. 788. The first accusation upon which the jeopardy is claimed must state a public offense, and the first affidavit stated a valid public offense in the case at bar, notwithstanding that there was no date stated in the affidavit for the commission of the offense. Myers v. State, 121 Ind. 15, 22 N. E. 781; Shell v. State, 148 Ind. 51, 47 N. E. 144; Armstrong v. State, 145 Ind. 609, 43 N. E. 866; State v. Sammons, 95 Ind. 22; State v. McDonald, 106 Ind. 238, 6 N. E. 607; State v. Patterson, 116 Ind. 45, 10 N. E. 289; Fleming v. State, 136 Ind. 149, 36 N. E. 154. Mr. U. S. Lesh, Attorney General, and Mrs. Edward Franklin White, for appellee: To sustain the defense of former jeopardy, the offenses charged in the two prosecutions must be the same in law and in fact. Miller v. State, 33 Ind. App. 509, 71 N. E. 248. If the same evidence would be necessary to secure a conviction in the pending as in the former prosecution, then the plea of former acquittal would be a complete bar to the pending prosecution. Smith v. State, 85 Ind. 553; State v. Elder, 65 Ind. 282, 32 Am. Rep. 69; State v. Hattabough, 66 Ind. 223. "Larceny, if committed, is distinct from the breaking and entering, and necessarily constitutes a distinct transaction." State v. Shaffer, 59 Iowa, 290, 13 N. W. 306, 14 Am. Crim. Rep. 83; State v. Ridley, 48 Iowa, 370; State v. Leonard, 135 Iowa, 371, 112 N. W. 784. A defendant who has had an indictment quashed on motion cannot be heard to assert in bar to a new indictment that the first one was good, so that he was in jeopardy thereunder. Joy v. State, 14 Ind. 139. If a jury is properly discharged in a cause without rendering a verdict, a second trial of the accused does not (— Ind. —, 133 N. E. 498.) put him twice in jeopardy for the same offense within the meaning of the Constitution. Dreyer v. Illinois, 187 U. S. 71, 47 L. ed. 79, 23 Sup. Ct. Rep. 28, 15 Am. Crim. Rep. 253. The necessary discharge of a jury before verdict does not prevent another trial. Doles v. State, 97 Ind. 555; State v. Leach, 120 Ind. 124, 22 N. E. 111. The allowance of a motion to quash a bill of indictment after a plea of not guilty is in the discretion of the trial court. State v. Pace, 159 N. C. 462, 74 S. E. 1018. Ewbank, Ch. J., delivered the opinion of the court: An affidavit was filed which purported to charge that the appellant feloniously, in the nighttime, broke and entered the warehouse of K., with intent feloniously to steal goods of said K. It did not comply with all the rules of good pleading, and appellant filed a motion to quash it, which motion was overruled, and appellant excepted. A plea of former adjudication was then filed by appellant, to which the court sustained a demurrer, and after the arraignment of appellant and his plea of "not guilty," a jury was impaneled and sworn to try the cause. The court then set aside its former ruling on the motion to quash, and entered an order sustaining that motion and quashing the affidavit, and thereupon discharged the jury, to all of which the appellant excepted. The first assignment of error challenges the ruling on the demurrer to appellant's plea addressed to said original affidavit. But since the motion to quash that affidavit was sustained, and an amended affidavit was filed, on which appellant was placed on trial, such original affidavit, together with the plea ad Appeal-record -quashed affidavit charging crime. dressed thereto and the demurrer to such plea, no longer constitute any part of the record on appeal. Burns's Anno. Stat. 1914, §§ 691, 2228, 2231; Kempton Lodge v. Mozingo, 19 A.L.R.-40. 180 Ind. 566, 568, 103 N. E. 411; Ewbank, Manual, 2d ed. § 116b. Neither could appellant reserve an available exception to an order sustaining a motion made by him self, which he had -exception to not withdrawn or sustaining own attempted to with motion. draw. And if the court, after overruling his motion addressed to the pleadings, became convinced that it had committed an error, it had power to set aside the ruling at any time before final judgment, and sustain the motion, such motion not having been withdrawn. Hartlep v. Cole, 101 Ind. 458, 460; First Nat. Bank v. Williams, 126 Ind. 423, 425, 26 N. E. 75. In any case the plea that appellant previously had been prosecuted and convicted on a charge of larceny, for taking from the warehouse which this affidavit charged him with breaking and entering, the same goods named in this affidavit as the goods which he intended to steal when committing the alleged burglary, did not Judgment-for state a cause of de- mer convictionfense. Unless an indictment for lar larceny and burglary. ceny also charges the offense of burglary, a conviction or acquittal of larceny will not bar a subsequent prosecution for burglary committed as a means of taking the goods stolen. State v. Warner, 14 Ind. 572; Smith v. State, 85 Ind. 553, 557; Fisher v. State, 46 Ala. 717; Gordon v. State, 71 Ala. 318; People v. Devlin, 143 Cal. 128, 130, 76 Pac. 900; Nagel v. People, 229 Ill. 598, 603, 82 N. E. 315; State v. Ingalls, 98 Iowa, 728, 730, 68 N. W. 445; People v. Parrow, 80 Mich. 567, 571, 45 N. W. 514; State v. Hackett, 47 Minn. 425, 427, 28 Am. St. Rep. 380, 50 N. W. 472; Sharp v. State, 61 Neb. 187, 191, 85 N. W. 38, 15 Am. Crim. Rep. 462; Howard v. State, 8 Tex. App. 450; Moundsville v. Fountain, 27 W. Va. 182, 196; 1 Bishop, New Crim. Law, § 1062; 2 Wharton, Crim. Proc. 10th ed. § 1307. An amended affidavit was filed, charging appellant with breaking and entering the warehouse of K. with intent to steal the goods of K. on a date named. To this appellant filed a verified plea, in which he recited the filing of the original affidavit, setting it out, and alleged that appellant filed a motion to quash it, which was overruled and he excepted, and that on the same day he pleaded not guilty, and a jury was impaneled and sworn, but that thereafter, also on the same day, the court sustained the motion to quash said affidavit, and thereupon discharge the jury. And he alleged that both affidavits charged the same offense, and that he had been placed once in jeopardy for said offense, and could not be tried again. Incidentally he averred that the first affidavit stated the alleged public offense with sufficient certainty so that the action of the court in sustaining the motion to quash it was erroneous. No rule of law is more fully established than that a party cannot Appeal-invited error-right to complain. successfully complain on appeal of an error which he procured the trial court to commit, and that filing a motion will estop a party to challenge a ruling sustaining such motion, Criminal lawformer jeopardy -procuring quashal of affidavit. where it is not dismissed or withdrawn. Ewbank, Manual, 2d ed. § 255. Therefore appellant is estop ped to deny that the first affidavit was properly quashed. And having procured that ruling to be made, by filing his motion asking the court to quash the affidavit, he was thereby put in the same situation as if the first affidavit had never been filed. Joy v. State, 14 Ind. 139; Miller v. State, 33 Ind. App. 509, 512, 71 N. E. 248; Mills v. State, 52 Ind. 187, 191; Ex parte Bradley, 48 Ind. 548, 551, 557. Besides, sustaining a demurrer to the special plea of former jeopardy was harmless in each instance, because, under the plea of not guilty entered by appellant to the first affidavit and entered by the court on his behalf when he refused to plead to the second affidavit (Burns's Anno. Stat. 1914, § 2072), · "the defendant may show and prove on the trial that he has before had judgment of acquittal . . for the same offense, or any matter of defense except insanity." Burns's Anno. Stat. 1914, § 2069. And in the absence of any showing that he was denied an advantage to which he would have been entitled under his special plea, we cannot deem the ruling harmful. Barker v. State, 188 Ind. 263, 267, 120 N. E. 593. It is not made to appear that the appellant introduced, or offered to introduce, any evidence to prove former jeopardy. The judgment is affirmed. ANNOTATION. Conviction or acquittal of larceny as bar to prosecution for burglary. Generally. This annotation is designed to include only those cases which involve the question whether a conviction or acquittal of a charge of larceny is a bar to a subsequent prosecution for burglary based on the same transaction. Whether a conviction or acquittal of a charge of burglary is a bar to a subsequent prosecution for larceny is excluded. The question whether the pendency in one county of a charge of larceny is a bar to a subsequent charge in another county of an offense which involves both the felonious breaking and the felonious taking of the same property is treated in the note appended to Runyon v. Morrow, post, 636. The rule maintained by the majority of the decisions is that, unless an indictment for larceny also charges the offense of burglary, a conviction or acquittal of burglary will not bar |