The conviction is for felony theft, with a count charging a prior conviction for an offense of the same nature; the punishment, ten years in the penitentiary.
The sole question presented for review is that of former jeopardy.
The record reflects that on the 14th day of January, 1949, appellant was indicted for the offense of felony theft — that is, the theft of the pick-up truck belonging to Jack Martin. On the 19th day of January, 1949, when that case was called for trial, appellant waived a trial by jury and entered his plea of guilty before the trial judge. The proceedings relative- to the waiver and plea were in all things regular. The state then introduced a witness in an endeavor to prove its case. Upon the sustaining of the objection of appellant’s counsel to the testimony of that witness, the state’s attorney announced to the court he had anticipated that appellant’s counsel would stipulate as to the facts and that he was not prepared at that time to introduce witnesses to prove a case against appellant. The trial court expressed the view that evidence should be introduced rather than stipulated. State’s counsel then announced that appellant would be re-indicted under a new indictment with a count *41therein charging repetition of offense. Appellant, who had been silent during the discussion, was, at the court’s direction, returned to jail.
No further action appears to have been taken in the case until the 26th day of January, 1949, or a week after appellant had entered his plea of guilty and further hearing thereon had been postponed. On that date the trial court, at the motion of state’s counsel, dismissed the case against appellant to which he had entered his plea of guilty, and ordered his discharge therefrom. The reason for the dismissal was that appellant had been re-indicted for the offense charged, under a new indictment containing a count charging, appellant’s prior conviction for an offense of like character. Such indictment had been returned by the grand jury on January 21, 1949, and was pending at the time the first indictment was dismissed. The trial and conviction in the instant case occurred subsequent to that dismissal.
It is upon this last indictment appellant has been here convicted. The primary offense charged in each of the indictments was the same offense and transaction.
The bill of exception affirmatively reflects that the appellant did not consent to and had no knowledge of the dismissal of the first indictment.
There is nothing in the record showing, or tending to show, that the first indictment, to which he had entered his plea of guilty, was dismissed at the request or as a result of any act of the appellant; nor does the record reflect that appellant withdrew his plea thereto.
The trial court in the instant case refused to sustain appellant’s plea of former jeopardy or to submit such plea to the jury in this case.
The facts being undisputed, the question is whether the plea of former jeopardy was good, as a matter of law.
Under the facts stated, when appellant pleaded guilty to the first indictment, jeopardy attached as to the offense there charged against him under our Bill of Rights, Const., Art. 1, Sec. 14; Art. 8, C. C. P.; Johnson v. State, 73 Tex. Cr. R. 133, 164 S. W. 833; Steen v. State, 92 Tex. Cr. R. 99, 242 S. W. 1047; 12 Tex. Jur., p. 537, Sec. 223.
*42The action of the trial court in dismissing the indictment and ordering appellant’s discharge thereunder, without his consent, acquiescence, or request, amounted to his acquittal of the offense there charged, and a second trial for that offense was barred. 12 Tex. Jur., p. 546, Sec. 231, and authorities there cited.
From what has been said, it follows that the plea of former jeopardy should have been sustained.
The judgment is reversed and prosecution ordered dismissed.
Opinion approved by the court.