I. Exceptions to defendant’s plea- of former jeopardy were properly sustained. It was not shown by the facts alleged in said plea that the jury, on the former trial, were improperly discharged by the court. True, the jury were discharged on the same day that the cause was submitted to them, but, for aught that appears from the plea, it may have been after they had been kept together for such time as to render it altogether improbable they could agree; or it might have been because of some urgent necessity, such as the serious illness of one or more of the jurors, etc.
The law vests in the trial judge a discretion, under certain circumstances, to discharge a jury even in a felony case, without the consent of the defendant, and the exercise of such discretion will not be revised by this court, and will not be held to constitute jeopardy, except when it is made clearly to appear that such discretion has been abused. This subject was very fully discussed in the case of Powell v. The State, decided at the last Austin term of this court (ante, p. 345), and it is therefore unnecessary that we should, in this opinion, reiterate the conclusions then arrived at. In .that case it was made manifest to this court, by the record, that in discharging the jury on a former trial the court had abused its discretion, and the defendant’s plea of jeopardy was therefore sustained. In this case the plea fails to allege facts which show legal jeopardy, and hence the court did not err in sustaining the exceptions to it.
II. The evidence relied upon by the State to sustain this conviction, being wholly circumstantial, it was the imperative duty of the court to instruct the jury in relation to this character of evidence. This the court failed to do, and in so failing committed an error *413which must reverse the judgment. (Faulkner v. The State, 15 Texas Ct. App., 115; Garcia v. The State, Id., 120.)
III. With a view to another trial, we will call attention to a matter apparent of record which, however, has not been directly presented by counsel for defendant in his brief. In the indictment the cattle charged to have been stolen are alleged to be the property of Franz Masoh, while the evidence shows the name of the owner to be Frank Mozach. These names are not idem sonans, and the proof, therefore, does not sustain the allegation of ownership. On another trial this variance may perhaps be obviated.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
[Opinion delivered January 14, 1885.]