dissenting.
The law of jeopardy bottomed on the Fifth Amendment is derived from the common law. According to Blackstone the principle underlying the two pleas of autre-fois acquit and autrefois convict is a “universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offense,” 4 W Blackstone. Commen-*160tañes 335-336. In United States v. Wilson, 420 U.S. 332, 340, 95 S.Ct. 1013, 1020, 43 L.Ed.2d 232 (1975) the opinion of the Court by Justice Marshall explores history of adoption of the Double Jeopardy Clause and concludes that the language ultimately approved by the first Congress “tracked Blackstone’s statement of the principles of autrefois acquit and autrefois convict.” Id., at 342-343, 95 S.Ct. at 1021. With that lore in mind, the Supreme Court has declared that which it discerned:
“The underlying idea ... is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
“When a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense.”
United States v. Wilson, supra, 420 U.S. at 343, 95 S.Ct. at 1021. Accordingly, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) confirms that the Double Jeopardy Clause provides three related protections:
“It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.”1
The Bill of Rights in the Texas Constitution adopts the guaranty of the Double Jeopardy Clause in the Fifth Amendment, but it also adds another. Article I, § 14 provides:
“No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.”
Thus, as well as its own bar to another trial for the same offense after a verdict of not guilty,2 like the United States, Texas embraced the common law notions of autre-fois acquit and autrefois convict. Simco v. State, 9 Tex.App. 338, 3483 (Ct.App.1880); Doggett v. State, 130 Tex.Cr.R. 208, 93 S.W.2d 399, 405 (1936) (Opinion on Rehearing).
However, “an accused must suffer jeopardy before he can suffer double jeopardy,” Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 1065, 43 L.Ed.2d 265 (1975). Jeopardy attaches in a jury trial when the jury is empaneled and sworn — a federal constitutional rule that is applicable to the states. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Still, “the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial,” Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). For the Double Jeopardy Clause “does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment,” Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 93 L.Ed. 974 (1949). “[Rjetrial is not automatically barred when *161a criminal proceeding is terminated without finally resolving the merits of the charges against the accused,” Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978).
When a jury is discharged without reaching a verdict and from that “manifest necessity” the trial judge declares a mistrial, the uniform answer to the inquiry about whether a retrial is barred is that it is not prohibited by the Double Jeopardy Clause of the Fifth Amendment. Arizona v. Washington, supra; United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904); United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824).4 “[A] mistrial premised upon the trial judge’s belief that the jury is unable to reach a verdict, long considered the classic basis for a proper mistrial ... accords recognition to society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws,” Arizona v. Washington, supra, 434 U.S. at 509, 98 S.Ct. at 832.5
Before the unreported opinion of this Court on original submission in McEIwee v. State became a casualty of constitutional uniformity mandated by the Supreme Court of the United States in Crist v. Bretz, supra, jeopardy in Texas did not attach in a jury trial until the jury had been selected and sworn and thereafter the accused plead to the charging instrument. McElwee v. State, 589 S.W.2d 455, 456, 457-460 (Tex.Cr.App.1979); Anderson v. State, 24 Tex.App. 705, 7 S.W. 40, 42 (Ct.App.1886). However, once jeopardy attached, the “manifest necessity” teachings of United States v. Perez, supra and see n. 4, ante, were followed by courts of this State, e.g., Smith v. State, 22 Tex.App. 196, 2 S.W. 542, 544 (Ct.App.1886), it being statutorily prescribed in other terms since at least Old Code Article 619— the genesis of present Article 36.31, V.A.C. C.P.: “... the court may in its discretion discharge [the jury] where it has been kept together for such time as to render it altogether improbable that it can agree.” See generally Bowles v. State, 606 S.W.2d 875, 878-880 (Tex.Cr.App.1980) (Dissenting Opinion). And, consistent with the consequences when a trial judge correctly determined to apply the doctrine, Article 36.33, V.A.C.C.P., successor to Old Code Article 621, provides: “When a jury has been discharged ... without having rendered a verdict, the cause may be again tried.... ” Thus, while the “valued right” of an ac*162cused “to have his trial completed by a particular tribunal is within the protection of the constitutional guarantee against double jeopardy,” Crist v. Bretz, supra, 437 U.S. at 36, 98 S.Ct. at 2161, it is given full play until the trial judge determines “it altogether improbable” that the particular jury will agree and, perforce, “manifest necessity” requires that he declare a mistrial. But once that is done the prosecutor may invoke his correlative right to retry the accused.
Just as such an accused is not prejudiced when merits of charges against him are not finally resolved by a jury,6 there seems to be no case which allows him to assert harm in the failure to have the jury resolve other charges against him that were not submitted to the jury. Put another way, if the merits of the charges against an accused have not been resolved when the trial is terminated through manifest necessity, there is no known constriction in the law of jeopardy that precludes the State from calling upon the accused to answer to the same charges and exercise his valued right to have that trial completed by the particular tribunal in the selection of the members of which the accused has again participated. If there is any authority to the contrary, the majority does not reveal it.
What the majority characterizes as a “general rule” is inapposite and does not militate against the legal conclusions I reach. That rule is “general” only in the sense that from time to time several decisions of the former court of appeals and the Court applied it to a recurringly common situation: a jury verdict is returned on one count of a multicount indictment after either the prosecutor elected, or the trial judge elected for the State, to submit just the one count. In such a situation the consistent holding is that “jeopardy” barred reprosecution of that which had been “dismissed.” However, in each instance the jury made findings and rendered a verdict in the case. Thus, borrowing the phrase from Justice Stevens in Arizona v. Washington, the criminal trial is not terminated “without finally resolving the merits of the charges against the accused,” id., 434 U.S. at 505, 98 S.Ct. at 830.
To the creation of yet another abberation in the already misunderstood law of jeopardy, I respectfully dissent.
W.C. DAVIS, McCORMICK and CAMPBELL, JJ., join.. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. This feature of our constitutional provision is not implicated in the instant cause, and it will not be further noticed.
. “Autrefois acquit is only available in cases where the transaction is the same and the two indictments are susceptible of, and must be sustained by the same proof.” See, e.g., Williams v. State, 58 Tex.Cr.R. 193, 125 S.W. 42, 43 (1910).
“Autrefois convict only requires that the transaction, or the facts constituting it, be the same.” See Doggett v. State, 130 Tex.Cr.R. 208, 93 S.W.2d 399, 405 (1936) (Opinion on Rehearing).
. The doctrine seems to have acquired its title from the opinion of the court delivered by Justice Story, viz:
“We are of the opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put to his defense. We think that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. * * * [Ajfter weighing the question with due deliberation, we are of the opinion that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial.”
United States v. Perez, supra, 9 Wheat, at 579, 6 L.Ed. at 165-166.
. Society’s interest had been recognized more elaborately by the Supreme Court almost thirty years earlier, viz:
“The double-jeopardy provision of the Fifth Amendment ... does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. * * * What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.”
Wade v. Hunter, 336 U.S. 684, 688-689, 69 S.Ct. 834, 836-837, 93 L.Ed. 974 (1949).
. The accused has, of course, gone through the stress of a trial, and I do not lightly dismiss the consequences of that. My reference to “prejudice” is the kind that substantially impairs presentation of a defense and the like.