OPINION OP THE COURT.

— It was essential to a valid trial that in some way there should be an issue between the Territory and the appellant, and without a plea, in the absence of the statutory provisions to the contrary, there could be no issue.'

1 2 This principle is stated by Bishop in Yol. 1, New Criminal Proc., Sec. 733, and is abundantly sustained by the decisions. Crane v. United States, 162 U. S. 643, and cases cited. It is contended in behalf of the Territory that by going to trial without objection after his demurrer was overruled, the appellant should be held to have waived his right to re-plead and to have assented to the restoration of his former plea. This is, indeed, the common sense view of the question and the one we should be pleased to adopt, if we were at liberty to do so; since it is not suggested that the appellant was in any way injured by the failure to have him re-plead. This view is well presented in Lamphere v. State, 114 Wis. 193. But in that case as in most, if not all others cited by the appellee, the decision was based, in part at least, on a statute which required the court to disregard irregularities in the proceedings which did not injuriously affect the rights of the defendant.

This Territory has not such a statute and we must hold that there was no valid trial in the district court; that its action in overruling the motion in arrest of the judgment be reversed, and that the case be remanded to it for further proceedings in accordance with this opinion.