We granted certiorari to the Court of Appeals in State v. Morris, 202 Ga. App. 344 (414 SE2d 656) (1991) to determine the propriety of the Court of Appeals' denial of the defendant's motion to dismiss the state's appeal. Morris argues that the state's appeal under OCGA 5-7-11 is barred by the state and federal constitutional prohibitions against double jeopardy. See U. S. Const., Amend. V; Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII. We agree and reverse. Morris was indicted for trafficking in cocaine and other violations of the Georgia Controlled Substances Act. During his trial, on cross-examination of the arresting officer, Morris sought the name of the informant who gave the police information leading to his arrest. When the officer refused to disclose the informant's identity, the court, outside the jury's presence, heard the parties' arguments regarding the state's assertion of privilege against disclosure. See OCGA 24-9-27. The trial court found that because the informant had previously revealed his assistance and identity in two unrelated matters, any privilege against disclosure had been waived. When the state insisted on its privilege, and refused to recall the officer, the trial court dismissed the case. Morris moved to dismiss the state's appeal of the ruling that the privilege was waived. The Court of Appeals denied the motion, 202 Ga. App. at 344 (1), and held that the trial court erred in finding the state could not invoke the privilege of confidentiality. 202 Ga. App. at 345. 2 Our review on certiorari is limited to the merits of the defendant's motion to dismiss the state's appeal on grounds of double jeopardy. There is no question jeopardy had attached before the trial court's dismissal of the case. See, e.g., Shaw v. State, 239 Ga. 690, 692 (1) ( 238 SE2d 434) (1977). Once Morris' jury was impaneled and sworn, jeopardy attached, and he was entitled to be acquitted or convicted by that jury. Jones v. State, 232 Ga. 324, 326 ( 206 SE2d 481) (1974). 3 If retrial would be barred because of double jeopardy, then the state's appeal should be dismissed. Necessarily, however, not all terminations bar retrial or appeal. For example, if the court dismisses the indictment, the state may appeal and a retrial is not necessarily barred. OCGA 5-7-1 (1). Similarly, if a mistrial is granted under certain circumstances, 4 the state may retry the defendant. The Court of Appeals agreed with the state that the trial court's action constituted a dismissal of the indictment and the state was entitled to an appeal under OCGA 5-7-1 (1). Whether the interruption of Morris' trial resulted from a dismissal of the indictment depends not upon the terminology used by the court, but upon the substance of the trial court's action. See State v. Williams, 246 Ga. 788, 789 (1) ( 272 SE2d 725) (1980). Here there was no defect in the indictment, nor was one alleged. Compare State v. Williams, supra. There was no legal basis to dismiss the indictment nor can the trial court's termination in this case be characterized as the declaring of a mistrial for "manifest necessity," or to preserve the ends of justice. Compare Jones v. State, supra, 232 Ga. at 327. The termination was thus improper and further prosecution is prohibited under OCGA 16-1-8 (a) (2) which provides: A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution: (2) Was terminated improperly after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts or a plea of guilty was accepted by the court. Stephen F. Lanier, District Attorney, Tambra P. Colston, Assistant District Attorney, for appellee. | 
