Appellant was convicted of the theft of a banana, and given five days in the county jail as his punishment. Former jeopardy pleaded by appellant was, on demurrer by the State, stricken out by the court. There was no error in this ruling. The plea showed upon its face that the former information was so fatally defective that it could not form the basis of a prosecution, and a judgment rendered thereon would have been a nullity. On the former trial, after the plea was entered, and evidence partly admitted, it was discovered the information filed in that case failed to negative consent of the owner, whereupon that prosecution was dismissed by the State, over appellant's objection. There was no error in this ruling. Nor did the court err in refusing to admit evidence on this trial in support of his plea of jeopardy. It had been eliminated from the cause, and there was nothing before the court authorizing the proffered testimony. The statement of facts is not sent up in the record.

The judgment is affirmed.

Affirmed.

Judges all present and concurring. *Page 434