
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 5, 1912.)
    Cbiminal Law (§ 42) — Ageeement Not to Pbosecute — 'Validity.
    Under Code Cr. Proc. 1895, art. 63, as amended by Acts 28th Leg. c. 124, which provides that, where one of two courts having, concurrent jurisdiction of an offense first acquires jurisdiction, it shall have exclusive jurisdiction, the authorities of one county can-' not validly agree to relieve from prosecution, one giving testimony before a grand jury concerning an offense for which he has been indicted in another county.
    [Ed. Note. — Eor other cases, see Criminal’ Law, Cent.-Dig. §§ 45-48; Dec. Dig. § 42.]
    Appeal from District Court, Kaufman. County; F. L. Hawkins, Judge.
    J. B. Johnson was convicted of larceny,, and he appeals.
    Affirmed.
    J. G. Matthews, of Greenville, for appellant. C. E. Lane, Asst. Atty. Gen., for the-State.
    
      
       For other cases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes.
    
   HARPER, J.

Appellant was indicted in. Kaufman county, Tex., charged with the-theft of a horse, tried and convicted, and his punishment assessed at two years’ confinement in the state penitentiary.

There is but one question raised on appeal that it will be necessary to discuss. When the case was called for trial, appellant interposed a plea, in proper form, alleging that he made an agreement with the officials off Hunt county that he should not. be prosecuted for this offense; that he had been carried’ before the grand jury of Hunt county, and, relying on such agreement, had testified before the grand jury, and on his testimony an-indictment had been returned against one Adams, charging him with the theft of this horse; that said indictment was then pending against Adams in the district court of Hunt county, and he was ready and willing-to testify in said case against Adams; that he had violated the agreement in no sense, and under this agreement he was exempt from punishment for this offense.

The evidence on this plea was heard, along with the other testimony on the trial, and after hearing the evidence the court refused to submit the plea in his charge to the jury,, and this is assigned as error. If the evidence was not such as would justify and authorize a finding by the jury that a legal and enforceable agreement had been made, then there was no' error in the court refusing to submit the plea in his charge; if there was, of course, it would be such an error as would require a reversal of the case.

It appears that on or about the 11th day of last November a horse was stolen from James Parkerson at a point near the county line of Kaufman and Hunt counties; that is so near the county line as- to give jurisdiction of the offense to either or both of said' counties. The sheriff of Kaufman county caused the arrest of defendant, Johnson, in the city of Dallas, and he was found in possession of the horse; Adams also being arrested at the same time and place in a few moments after the arrest of Johnson. A complaint was filed against both Johnson and; Adams in the justice court of precinct No. 1 ■of Kaufman county on the 14th day of November, and they were arrested on that complaint on that day. Waiving an examining trial, they were hound over to the district court of Kaufman county and placed in jail in that county. The grand jury of Hunt ■county, subsequent to the time appellant was arrested on the complaint in Kaufman county, and while he was in jail in that county, being in session, issued an attachment, directed to the sheriff of Kaufman county, commanding him to bring both appellant and Adams before that body as witnesses, and in obedience to the attachment carried them to Hunt county, when, after they had appeared before the grand jury on the same day, the sheriff carried them back to Kaufman ■county jail. It appears that while appellant was before the grand jury in Hunt county an agreement was entered into, as to the terms of which the witnesses are not in entire accord. The foreman and some other members of the grand jury say that there had been considerable complaint of horse stealing in Hunt county; and when appellant was before the grand jury they agreed ■with appellant that, if he would testify in regard to the theft of this Parkerson horse and other matters, he would not be prosecuted in Hunt county for any offense in regard to which he might testify; hut they say they informed him they could not secure him against a prosecution on the complaint then pending in Kaufman county.

Appellant and several witnesses testify that the agreement was that he was to be exempt from prosecution for this specific offense by the state. While the district attorney was not present when the agreement was made, yet it may be inferred from his testimony that, when informed of the agreement, he ratified and confirmed the agreement made by the grand jury. Appellant testifies: “In my testimony given before Hunt county grand jury, my understanding was that they were going to turn me loose if I would tell the straight of it. There was nothing said about Kaufman county, or any other county.” As corroborative of the testimony of the grand jurors, it was shown that appellant was carried back to the Kaufman county jail on that day, and has been in jail in that county ever since.

If it was an issue as to whether or not the agreement was, in substance, as testified to by the grand jurors, or as testified to by appellant, of course, it would be an issue of fact, and should have been submitted to the jury for their determination. But, as we view the law, if the grand jury of Hunt county promised appellant immunity from punishment for this specific offense, and the agreement was indorsed and ratified by the district attorney and district judge of that county, they were without authority to make such an agreement, as prosecution had already been commenced in Kaufman county, and appellant theretofore arrested by the officers of that county for this offense. It is true it is the state prosecuting appellant, and the officers of Kaufman county and of Hunt county are equally representatives and agents of the state, and performing functions in the name of and by authority of the state, yet the state has provided by its laws that a court first obtaining jurisdiction of an offense has jurisdiction to the exclusion of all other courts with concurrent jurisdiction. In 1903 (Acts 28th Leg. c. 124) article 63, c. 1, tit. 2, Code Or. Proc., was amended to read as follows: “The following courts have jurisdiction in criminal actions: (1) The Court of Criminal Appeals. (2) The district courts. (3) The county courts. (4) The justice courts, and the mayor’s and other courts of incorporated cities and towns; provided, that when two or more courts have concurrent jurisdiction of any offense against the penal laws of this state the court in which an indictment or a complaint shall first be filed shall retain jurisdiction of said offense to the exclusion of all other courts.”

It appearing that the district court of Kaufman county had acquired jurisdiction of this offense on the 14th day of November, it had exclusive jurisdiction of the offense; and, had the state undertaken to prosecute appellant in the district court of Hunt county for this offense, he could have pleaded the pendency of this prosecution in bar of a prosecution in Hunt county. Pearce v. State, 50 Tex. Cr. R. 507, 98 S. W. 861. And if the district court of Hunt county had no jurisdiction of the offense at the time the agreement was made, as is manifest by the record, then the agreement, whatever it may have been, was made by a court without authority, and in regard to an offense of which another court had exclusive jurisdiction, and of no force and effect; and the court in Kaufman county did not err in refusing to submit the plea. For other authorities so holding, see In re Beavers (D. C.) 125 Fed. 988; State v. Riley, 109 Minn. 437, 124 N. W. 13; Taylor v. Taintor, 16 Wall. 370, 21 L. Ed. 287; Matter of Briscoe, 51 How. Prac. (N. Y.) 422; Matter of Troutman, 24 N. J. Law, 634. The terms and proper construction of this statute are so fully discussed, and the probable reasons for its enactment are so fully stated, in the opinion of Judge Davidson, in the Pearce Case, supra, we do not deem it necessary to do so here; but we might say that none of the evidence given by appellant before the grand jury in Hunt county was adduced on this trial, as it should not have been. If it had been, we would feel inclined to hold that evidence adduced under such circumstances would be inadmissible.

The judgment is affirmed.  