OPINION ON STATE’S MOTION FOR REHEARING
DICE, Judge.We have examined the record in the light of the state’s motion for rehearing, and remain convinced that a proper disposition was made of the case in our opinion on original submission.
In view of the position taken by the state in its motion for rehearing that in the event of a reversal of the conviction appellant’s plea of former acquittal which the jury found against him at the trial should not at a subsequent trial be again submitted, we point out that the effect of the reversal of the conviction, under the provisions of Art. 44.29, C.C.P., is that “ * * the cause shall stand as it would have stood in case the new trial had been granted by the court below.”
Art. 40.08, C.C.P., provides:
“The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place * * * »
While the jury found against appellant on his plea of former acquittal based upon a jury’s verdict of not guilty at his trial for assault with intent to murder his wife, such would not preclude the plea from being again urged at a subsequent trial.
The state’s motion for rehearing is overruled.