94 S.W.2d 441
EPPS 
v. 
STATE.
No. 18143.
Court of Criminal Appeals of Texas.
April 8, 1936.
Rehearing Denied May 27, 1936.
Page 442
        Appeal from District Court, Freestone County; Lex Smith, Judge.
        Cecil Epps was convicted of theft, and he appeals.
        Affirmed.
        H. L. Williford and P. O. French, both of Fairfield, for appellant.
        Lloyd W. Davidson, State's Atty., of Austin, for the State.
        LATTIMORE, Judge.
        Conviction for theft; punishment, three years in the penitentiary.
        The facts are sufficient to support the verdict and judgment. There is but one bill of exceptions, and 
the only point here presented is that the court below, the district court of Freestone county, was without 
power to try this case because, before this indictment was returned, an indictment charging this theft had 
been returned in the district court of Navarro county, a court of concurrent jurisdiction by reason of the 
fact that the property in question was carried into Navarro county after having been stolen in Freestone 
county. The contention is based on article 64, C.C. P., which, in case two or more courts have concurrent 
jurisdiction of an offense, authorizes that court in which an indictment or complaint is first filed to retain 
jurisdiction to the exclusion of all other courts.
        The purpose of this enactment was to prevent confusion and contentions between different courts, 
each seeking to exercise jurisdiction, and the purpose was not to shield one accused of crime from 
prosecution when that court, in which the complaint may have been first lodged, had lost its jurisdiction 
by dismissal of the case, and he thereafter and when brought before another court of concurrent 
jurisdiction sets up the claim and plea that the court before which he is brought has no right to try him 
because another court had theretofore and first after the commission of the offense had before it another 
indictment or complaint. The claim smacks of absurdity if it be shown that at the time of the attempted 
exercise of jurisdiction by the court in which the trial is now had and where the indictment was returned 
upon which the trial is based, that the court in which the indictment was first returned had dismissed the 
case from its docket and was at the instant time making no effort to exercise or claim jurisdiction of the 
case. A similar question was before us Preston v. State, 109 Tex.Cr.R. 610, 6 S.W.(2d) 757.
        The facts in the instant case show that an indictment was returned against this appellant in Navarro 
county prior to the return of the indictment in Freestone county upon which this trial was had, but that the 
indictment in Navarro county had been dismissed, and at the time of the return of the indictment in 
Freestone county the Navarro county court was asserting no jurisdiction and had pending before it no 
indictment. Such being the facts, appellant had no legal right to set up such plea, and no reason existed in 
law why the district court of Freestone county should not entertain jurisdiction and properly try and 
dispose of this appellant's case. The fact that one court of concurrent jurisdiction may have at some 
former time had upon its docket an indictment or complaint charging the same offense for which the 
accused has subsequently been convicted in another court of concurrent jurisdiction would not operate to 
prevent forever any effort to prosecute in the latter court. The dismissal of the indictment or complaint in 
the court in which same was originally presented would operate as a waiver of or loss of jurisdiction in the 
court in which same had been presented and from whose docket it had been dismissed. We are of opinion 
appellant's contention has no merit, and the judgment will be affirmed.
        MORROW, P. J., absent.
On Motion for Rehearing.
        MORROW, Presiding Judge.
        In his motion for rehearing appellant insists that the indictment against him for theft in Navarro 
county had not been dismissed and was pending when his case was called for trial in Freestone county. 
The bill of exception bringing the matter forward discloses that a proper order dismissing the indictment in 
Navarro county had been entered in the minutes of the court. The failure of the trial judge to sign the 
minutes of the court would not affect the validity of the order of dismissal. Hurley v. State, 35 Tex.Cr.R. 
282, 33 S.W. 354.
        We are of opinion that the conclusion announced on the original hearing was correct.
        The motion for rehearing is overruled.