By writ of habeas corpus, relator seeks his release from the state penitentiary alleging that his conviction in Cause No. 601, Oldham County, is void by reason that his plea of guilty was accepted by the court without the state having waived the capital feature of “robbery with firearms.”
This court ordered the district judge of Oldham County to check his records to verify the relator’s allegation. The Honorable Judge has so done, and his records indicate that relator’s allegation is true.
In Ex parte Traxler, 147 Tex. Cr. Rep. 661, 184 S. W. 2d 286, it was held that where defendant was indicted for robbery with firearms, a capital offense, and there appeared in the record no separate order dismissing or abandoning the capital feature and the judgment contained no recital that the capital feature was dismissed or abandoned, the case remained a capital one, and acceptance of a plea of guilty without the intervention of a jury was beyond the court’s jurisdiction.
It accordingly follows that relator is entitled to his discharge under said judgment.
Writ of habeas corpus is granted, and relator is remanded to the sheriff of Oldham County to answer in the district court of said county to the indictment which was there originally returned against him.