The judgment entered upon the discharge of the jury at a prior term of the court was based upon the fact that a brother of one of the jurors (H.O. Marshall) had died since said juror had been impaneled as a member of the jury, and that said juror was needed to make arrangements for the funeral of his brother. The said order discharging the jury makes no direct finding as to the consent or nonconsent of accused, nor to the mental status of the juror Marshall because of the death of his brother which would render him unfit for further service as a juror at the time.
Appellant objected to the court submitting the issue of former jeopardy at all, on the theory that the judgment entered at the time the jury was discharged was sufficient in law to show that appellant was in jeopardy, and contended that the court should have peremptorily instructed the subsequent jury that appellant's plea was good. We are unable to agree with appellant's contention in this respect. The plea of jeopardy raised an issue of fact which appellant had a right to have the jury pass upon under proper instructions from the court. The recitals in the judgment discharging a jury are not binding against an accused as has been held by this court in Bland v. State, 42 Tex.Crim. Rep.; Vela v State, 49 Tex.Crim. Rep.; Hipple v. State,80 Tex. Crim. 531; 191 S.W. Rep. 1150. In Rogers v. State (decided March 1st, 1922 and not yet officially reported), we expressed the view that under authority of the above cited cases even a failure to enter a judgment at time the jury was discharged would not operate against the State to the extent of making a plea of jeopardy good as a matter of law, but that the plea would be sustained or defeated upon the facts.
Appellant presented many objections to the manner in which the trial judge submitted the issue of former jeopardy to the jury, and urges them on the motion for rehearing.
Appellant admitted that he consented to the discharge of the jury; the interpreter testified to the same fact. Appellant sought to escape the consequence of his admission by attempting to raise the issue that he did not understand the proceedings when the jury was discharged. Upon the latter question only did the court submit the issue. Under the facts of the case we see no error in this.
The motion for rehearing is overruled.
Overruled. *Page 392