We have examined with interest appellant's motion for rehearing, his argument thereon, and the authorities cited in support of his contention.
Chief reliance seems to be upon Ball et al. v. United States,140 U.S. 118, 35 Lans. Ch. C. P. 377; and Broakway v. State,138 N.E. 88, 26 A. L. B., 1338. In the jurisdictions where these cases arose there was a statute corresponding to our Article 195, C. C. P. (1925) (quoted in the original opinion), but it does not appear from those decisions that there was also a statute corresponding to our Article 210, C. C. P. (also quoted in the original opinion.) It may be that our lawmakers inserted Article 210 in the code to prevent the very question discussed in the cases referred to from arising. In addition to articles of our C. C. P. already mentioned others may be noted. Subdivision 5, Art. 396, C. C. P. (1925) requires the indictment to show that the place where the offense was committed is within the jurisdiction of the court in which the indictment is presented. Article 400 Cow. C. P. (1925) provides that:
"When an offense may be prosecuted in either of two or more counties the indictment may allege the offense to have been committed in the county where the same is prosecuted, or in any county or place where the offense was actually committed."
Effect has been given these various articles many times. Numerous cases may be found collated in the notes under said articles as found in Vernon's Ann. C. C. P. of Texas (1925). Article 190, C. C. P. (1925) is as follows:
"An offense committed on the boundary of any two counties, or within four hundred yards thereof, may be prosecuted and punished in either county."
This statute has been given application even where a river was the dividing line between the counties. Hackney v. State, (Tex. Ct. App.) 74 S.W. 553. Where an offense was committed in an unorganized county and indictment returned in the county to which the unorganized county was attached for judicial purposes, (it being alleged in the indictment the crime was committed in the county where the indictment was presented) it has been held that Article 210 (supra) did not apply, because there was no statute providing for "laying the venue of an offense committed in an unorganized county in the county to which it may be attached for judicial purposes." Chivarro v. State, 15 Tex. Ct. App. 330. The implication cannot be escaped from the announcement in said case that if there had been such *Page 521 a statutory provision it would have been proper to allege that the offense occurred in the county where the prosecution was instituted. The holding in Chivarro's case has no application here.
We have not been able to perceive wherein the various articles of the statute referred to, and especially Article 210, are in contravention of Sec. 10, Art. 1, Constitution of Texas, guaranteeing that an accused "shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof." Neither do we agree with appellant's contention that said statutes are contrary to the fifth, sixth and fourteenth (Sec. 1.) articles of the constitution of the United States.
Appellant takes the position that he would be unable to plead a judgment rendered on the present indictment in bar of another prosecution for the same offense in Lubbock County should one be there instituted. This is wholly untenable. One pleading former acquittal or conviction in this state may allege and prove the facts which show the identity of the offense although this may not appear upon the face of the indictment, nor from the recitals in the judgment. The evidence shows that death occurred in Lubbock County and resulted from the injury inflicted in Floyd County. Under the facts a quotation from the opinion in Spencer v. Commonwealth, 184 Ky. 699x, 240 S.W. 750, seems appropriate.
"It would be absurd to say that one indicted for the crime of murder by feloniously shooting another in one county, and the death followed in another, that such indictment did not apprise him of the crime for which he was to be tried, from the fact that it charged him with the acts and consequences necessary to make the complete offense as having all occurred in the county where the crime became complete. Further, there could be no question but that such trial would be a complete bar to another trial for the same crime, since all the elements of the crime were proven upon the trial."
Counsel for appellant have made an exhaustive investigation of the subject and present their views in a forceful manner, but we have been unable to agree to the soundness of their position.
The motion for rehearing is overruled.
Overruled.
ON REQUEST TO FILE SECOND MOTION FOR REHEARING.