What is the test for pleading the defense of former jeopardy?

It is true that the defense of former jeopardy must be pleaded, and that failure affirmatively to plead it is a waiver of the defense. However, as was pointed out by Judge (now Mr. Justice) Schauer in People v. Matiasevich, 12 Cal.App.2d Supp. 759, 55 P.2d 942, 943: 'The lower court, even if a new trial were granted by this court, could not lawfully try the defendant again (at least, in the absence of his consent thereto and his resistance to this appeal negatives such consent).'