Relator presents an original application for writ of habeas corpus to this court, contending that he is entitled to. bail. The question arises upon the construction of the new statute upon murder, the form of the indictment in the present prosecution, the effect of submitting the case to the jury upon a count of the indictment which omitted the averment that the killing was upon malice aforethought, and the abandonment of a good count charging murder upon malice aforethought.

Tersely stated, relator contends that he was in jeopardy on the count of the indictment which did allege a killing upon malice aforethought, and that upon another trial he can not be assessed a punishment of more than five years in the penitentiary, hence that he is entitled to bail as a matter of law.

It will be seen that relator is seeking by habeas corpus proceedings, to have this court pass upon the question of former jeopardy which may or may not be plead in the lower court upon another trial. It has-been held consistently that a habeas corpus proceeding can not be the basis for such action. Ex parte Crofford, 39 Texas Crim. Rep., 547, 47 S. W., 533; Ex parte Mitchum, 91 Texas Crim. Rep., 62, 237 S. W., 936; Ex parte Spannell, 85 Texas Crim. Rep., 304, 212 S. W., 172, in which many cases are cited.

*164 That the plea of jeopardy is a personal privilege and can be waived by accused is well established. Corpus Juris, vol. 16, sec. 489, Dunn v. State, 92 Texas Crim. Rep., 126, 242 S. W., 1049. If relator does not waive the plea it will be available to him when again placed on trial and he can then invoke a ruling of the trial court thereon; if the ruling is unfavorable to him (which we can not assume will be the case) he may present it upon appeal to this court. Ex parte Mitchum (supra.).

The writ is denied.

Denied.