
    GRIGSBY v. STATE.
    No. 26389.
    Court of Criminal Appeals of Texas.
    April 22, 1953.
    Wm. H. Hamblen and W. T. McNeil, by Wm. H. Hamblen, Edna, for appellant.
    Wesley Dice, State’s Atty., of Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, a fine of $400.

■ Bill of exception No. 1 complains of the court’s failure to sustain appellant’s plea in bar based upon former jeopardy. From the bill, it appears that at the prior term of the court the accused had been tried on th'e same charge and that during the course of such trial the jury began their deliberations at 2:15 p. m. and were discharged at 4:00 p. m.. because of their inability to agree upori a verdict. The bill recites that after the jury had deliberated for 45 minutes they reported to the judge that they could not agree, that the judge sent them back, and that at 4:00 o’clock they again reported that they had been unable to agree. At this juncture, the court asked counsel for the State and the accused if they were willing for the jury to be discharged, and neither counsel offered objection. The bill recites that there is no showing that the accused consented to the dismissal qf the jury. The bill was not qualified.

We recently had occasion, in Davis v. State, 144 Tex.Cr.R. 474, 164 S.W.2d 686, to review our decisions on the question of consent of the accused to the dismissal of the jury.

In Hooper v. State, Tex.Cr.App., 42 S.W. 398, we said, “It would be a remarkable case in which 2½ or 3 hours would be a sufficient time to render it altogether improbable that the jury could agree.”

We find no order of the trial judge declaring a mistrial wherein he made findings of fact upon which he predicated such order discharging the jury.

We conclude that the trial court abused his discretion when he discharged the jury after it had deliberated, only one hour and forty-five minutes and that he '■therefore should have sustained the plea of former jeopardy interposed in the instant case.

So concluding, the judgment will be reversed and the prosecution ordered dismissed.  