The question upon which the disposition of the case turned originally gave us much concern at the time. We have examined with interest the State's motion for rehearing and the argument in support thereof, but have not been persuaded that our original opinion was wrong. We think further reasoning on the subject would not clarify the point. Counsel for the State recognized the seriousness of the question and sought to avoid it in an effort to have the cases in Mason County dismissed before the question of jurisdiction was acted on in Nolan County. The motions to dismiss in Mason County contained the following reasons: *Page 577
"Comes now the State of Texas and moves the Court to dismiss the above entitled and numbered cause for the reason that an indictment has been returned by a grand jury of Nolan County, Texas, complaining of the same offense, transaction, and subject matter involved in the above entitled and numbered cause."
While the reasons stated in the motion may have been only the opinion of the representative of the State and not binding on the court; nevertheless it reflects the difficulty under which both the trial court and this Court labored in trying to reach a correct answer.
We observe that the trial court authorized a conviction if the jury believed that the thirty head of sheep had been acquired by theft in Nolan County, and that appellants in Nolan County "or in any other county in Texas" did receive or conceal the said thirty sheep, "or any part thereof," knowing them to have been stolen. The eight head of sheep found in Mason County and described in the indictment there were surely a part of the thirty covered by the Nolan County indictment; however, we apprehend the principle would have been the same had the indictments in Mason and Nolan Counties described only "one" sheep. Unquestionably the court's charge was correct as a legal proposition, if the former venue or jurisdiction in Mason County had not intervened.
The State's motion for rehearing is overruled.