Aрpellant was convicted of murder in the first degree, and his punishment assessed at death.
Appellant, Whitfield Jackson and Sarah Cаin were jointly indicted for the murder of B. Cain, Sarah’s husband. When the case was called for trial the State announced ready. Sarаh Cain presented an affidavit for severance, and asked that Whitfield Jackson be first placed upon trial. This was granted. Thereupon appellant presented his affidavit asking for severance and that Whitfield Jackson and Sarah Cain both be first tried. This, was grаnted. The case of Whitfield Jackson was called, and the district attorney made a verbal request of the court for time in which tо talk with the witnesses. The case was postponed until after the noon recess. VTien the court convened, the attorneys аnnounced ready in Whitfield Jackson’s case. The 'district attorney then presented a motion to dismiss as to Whitfield Jackson and Sarah Cain. The motion to dismiss is as follows:
“*
* * Sarah Cain has filed' an affidavit that the testimony of Whitfield Jackson is material to her defense, and Jim Manor has filed an affidavit that the testimony of both Sarah Cain and Whitfield Jackson is material to his defense. Jim Manor has confessed to the act of killing of Cain, and the trial of said Manor is unquestionably demanded by the facts; and it may be that the testimony of Jackson and Cain in the trial of Manor may have great weight in establishing whether it will be necessary to further prosecute them. Wherefore it is deemеd in the interest of public justice and expense to dismiss this case as to Whitfield Jackson and Sarah Cain, and said dismissal is prayed.” This was granted. Application for continuance was made on account of these matters, and for the testimony of Whitfield Jackson and Sarah Cain. The application was overruled. It is also shown in bill of exceptions that during the noon recess the district attorney had
J.
M. Fox make affidavit against Whitfield Jackson and Sarah Cain, charging with same murder, before Justice of the Peace Johnsоn, and upon dismissal of the indictment against them they were immediately arrested under the warrants and placed in the county jail. Thesе complaints were made before filing the motion to dismiss. In qualification of the bill, it is stated: “The court ruled and so informed defendant аnd his attorney that by the dismissal of the ease against Jackson and Cain said Jackson and Cain became competent witnessеs for defendant Manor, and that even if they had been rearrested they were still competent witnesses for defendant Manor, and defend
*372
ant Manor was, during the trial of the cause, without objection, allowed to put both Cain and Jackson on the stand as witnesses in his behalf.” The qualification of the bill of exceptions refusing the continuance is practically the same as the foregоing, with this addition: “Defendant Jim Manor afterwards introduced both of said witnesses in his behalf, without objection, but both witnesses .refused to testify on the grounds that they might incriminate themselves.” Article 707 of the Code of Criminal Procedure provides substantially, that where parties are jointly оr severally indicted for offenses growing out of the same transaction, they may sever and direct the order of trial under the circumstances mentioned in the article. These severances were sought under that_ article, and proper orders enterеd. This entitled appellant to have the eases of Jackson and Cain first tried. To avoid this, and for the purpose, as stated in thе motion to dismiss, the district attorney obtained the permission of the court to dismiss the case against these two parties, by virtue of thе indictment, and assigned his reason as above stated, to wit, “that he had the confession of appellant, and that his trial was unquestionably demanded by the facts, and it might be'that the testimony of Jackson and Cain in behalf of Manor would have great weight in establishing whether it was necessary to prosecute them.” It occurs to us that the reasons assigned by the district attorney for the dismissal, are reasons why the dismissal should have been refused. Clearly under the statute it was the right of appellant to have these parties first tried so he might usе their evidence in case of an acquittal. Usually, with the consent of the court, the district attorney may dismiss pending indictments, and so fаr as the parties themselves are concerned whose cases are dismissed, no objection can be urged by them. This is not а question of right accruing to the parties whose cases are dismissed and whose testimony is sought by the severance; it was apрellant’s right to have them tried first to obtain their testimony, it was and is his rights that are involved, and for his benefit the statute was enacted. In Brown’s case,
Reversed and remanded.