116 S.W. 572 | Tex. Crim. App. | 1909
Appellant was convicted of theft from the person, and his punishment assessed at two years confinement in the penitentiary.
At the same time appellant was indicted, one Eugene McClure was indicted for receiving and fraudulently concealing the property which Ruth Smith is alleged to have stolen, and appellant made a motion to have Eugene McClure first tried, whereupon the district attorney made a motion to dismiss the case against said McClure because the District Court of Eastland County did not have jurisdiction to try the case, which motion the court overruled, and thereupon the district attorney made a motion to dismiss the case against McClure because the evidence was not sufficient to warrant a conviction against said McClure, which motion the court sustained, and thereupon the State filed in the justice court and before a magistrate an affidavit charging the said Eugene McClure with receiving and fraudulently concealing the property which Ruth Smith is alleged to have stolen, and the sheriff of Eastland County then, in the presence of the regular panel of jury for the District Court, again arrested the said Eugene McClure, and under all these circumstances Ruth Smith was required to go to trial, and the court refused to have the case of Eugene McClure first disposed of. The bill presenting this matter has the following statement of the trial judge on same: "That terms of court for Eastland County held for eight weeks and this trial was during the last week of the term allowed by law. At the time of overruling of motion for severance, the attorney for the State declared that he was willing for the said Eugene McClure to be sworn and testify as a witness for the defendant without objection by the State on account of said recent *328 arrest or charge for complicity in the same crime, and the judge consented thereto, and during the trial of this case against Ruth Smith, the district attorney for the State, and the judge presiding, tendered the witness Eugene McClure to the defendant with the assurance that he might testify without objection on account of his being charged with participating in said crime, and defendant's attorney declined to accept said offer or to attempt to use said Eugene McClure as a witness."
The question of severance was exhaustively treated by this court in the late case of Hobbs v. State,
For the error discussed, the judgment is reversed and the cause is remanded.
Reversed and remanded. *329