[dissenting].
My brethren and I are at variance only upon one proposition, and that is as to what court the relator should be tried in relative to the recovery of his sanity in this matter.
It is shown that at one time he was charged with a criminal offense upon an indictment in one of the district courts of Dallas County. He filed an affidavit of lunacy at the time. On the call of said case in said court he was tried before a jury of twelve men and found to have been insane at the time of the commission of the offense, as well as insane at the time of this trial.
It is my contention that he having been found insane at the time of the commission of the offense, he can never be tried therefor again, regardless of his present sanity or insanity.
Now, the difference between my brethren and me is, where the relator should be tried relative to the recovery of his sanity.
At the present time the relator is confined in the State Insane Hospital at Terrell by virtue of the fact of his having been found insane at the time he was called for trial in the criminal district court of Dallas County, and he now claims to have recovered his sanity.
The statute in question requires that the trial of one who has recovered his sanity shall be had in the court which committed him to the insane hospital.
It is my contention that the district court has no power to commit any person to confinement in a hospital for the insane. *291It is evident by the judgment of the district court that found the relator insane that such court was required by law to commit him to the sheriff of the county to be by him turned over to the county court or probate court, which court should thereupon commit him to the insane hospital for treatment.
It is recognized by the statute, and it is also recognized by the district court in this instance, that it had no power to commit the relator to the hospital for the insane; that such power rested in the county court, and it became the duty of the county court to thus commit the relator to the insane hospital.
Section 2a of Chapter 466, Acts of the 45th Legislature, Regular Section (1937) page 1172, (now article 932a of Vernon’s Ann. Code of Criminal Procedure) provides that when the jury shall have found the defendant “to have been insane at the time the act is alleged to have been committed and insane at the time of trial * * * the Court shall thereupon make and have entered on the minutes of the Court an order committing the defendant to the custody of the sheriff, to be k&pt subject to the further order of the County Judge of the county and the proceedings shall forthwith be certified to the County Judge who shall at once take the necessary steps to have the defendant committed to and confined in a State hospital for the insane until he becomes sane.” (Italics mine.)
Section 3 of the Act or Article reads as follows:
“When the defendant so committed to a hospital for the insane becomes sane, the superintendent of the hospital shall give written notice of that fact to the Judge of the Court from which the order of commitment issued. Upon receipt of such notice the Judge shall require the sheriff to bring the defendant from the hospital and place him in the proper custody until the hearing may be had before a jury in such Court to determine defendant’s sanity, and if he be found sane, he shall be discharged, unless he had been previously found to be sane at the time at which he is alleged to have committed the offense charged, in which event, unless previously acquitted, he shall be tried for the offense charged.”
One is led to believe that the commitment to the insane hospital must come from the county court and that court is the court that committed him to the insane hospital, and that is the court from which the order of commitment issued. If so, it is very plain that the relator’s trial for sanity should be be*292fore the court in Dallas County which issued the order of commitment to the insane hospital.
That is the only difference between my brethren and myself, they claiming that it should have been the court that committed the relator to the custody of the sheriff to be taken to the county court, and my contention being that his trial for sanity should be before the county court of Dallas County.
It is worthy of consideration to show also that the relator can never be tried for the offense originally charged against him because he had been found to be insane at such time and we cannot upset that judgment, nor can we contest the same since it took place quite an interval of time prior to the present instance; and as regards the original offense charged in the Dallas district court, he has been found to have been insane at the time of its commission.
The county court has jurisdiction of lunacy cases conferred by Article V, Section 16 of our State Constitution, as well as by Article 5550, et seq. of the Revised Civil Statutes of 1925; and nowhere is it said therein that the district court should have such concurrent jurisdiction therein save as a defense for a crime. The crime herein has passed out of the case because of the finding of insanity at the time of the commission of the offense, and surely relator can never be convicted for the original offense therein charged.
I, therefore, dissent from that portion of the opinion herein that directs the relator to be tried in the district court of Dallas County.