79 S.W. 520 | Tex. Crim. App. | 1904
Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.
By bill of exceptions it is made to appear that appellant presented to the court affidavit for severance, asking that Joe Lawrence, who was separately indicted for this offense, be first tried, so that this defendant could have the benefit of the evidence of Joe Lawrence on the acquittal of Joe Lawrence, and that there was not sufficient evidence against Joe Lawrence to secure his conviction. Joe Lawrence was indicted for the same homicide. The court appends this explanation to the bill: "When the case was called for trial, the case of the State v. Joe Lawrence had been called for trial and had been continued by the court for the term on application by the State for good and legal grounds shown; and to have granted the motion of Joe Wolf, the overruling of which is complained of in the foregoing bill of exceptions, would have necessitated a continuance of the case against him for the term." Commenting upon a similar question in Forcey v. State, 29 Texas Crim. App., 408, this language was used. "Let us take the view entertained by the court below. The defendants are separately indicted. One of them believes *234 that the codefendant is not guilty. He desires his testimony and makes the affidavit required by the act of 1887. The State then continues the case against the party selected. The benefit of the act is thus denied; is made to depend upon whether the State is ready to try the party selected. This is clearly not the spirit or meaning of the act. It is not common practice; it is not the law." When a party separately indicted has made the affidavit required, the State can not defeat his right to have first tried the case of the defendant selected to be first tried, by continuing said case and to force him to trial under such circumstances is reversible error. We therefore hold that the court erred in not awarding defendant his statutory right of having his codefendant Lawrence tried first. If the facts are as they appear in this record, Lawrence should be tried before defendant is placed on trial. See also Manor v. State, 8 Texas Ct. Rep., 867.
The judgment is accordingly reversed and the cause remanded.
Reversed and remanded.
[Motion for rehearing overruled without written opinion. — Reporter.]
