1. Defendant's Right to Sever on Trial — Practice as to. — Under article 669a, Code of Criminal Procedure (Act of March 21, 1887), it is provided, that where two or more defendants are prosecuted for an offense growing out of the same transaction, by separate indictments, they may sever on the trial by either defendant making affidavit, that the evidence of one or more of the other indicted parties is material to his defense and in the event that two or more defendants make such affidavit, and can not agree as to their order of trial, then the presiding judge shall direct the order in which they shall be tried. See case in which it was held, that the judge rightly exercised his authority to direct the order of trial between two defendants, under the latter provision of this statute.
2. New Trial to Obtain Testimony of Acquitted Codefendant.
Held,
DAVIDSON, JUDGE.
Appellant and Henry Grantham were separately indicted for the same alleged robbery. When the defendant's cause was called for trial, it having precedence on the docket, he filed his affidavit, under the terms of the statute, asking that Grantham be first tried. To this Grantham interposed objection, and filed his affidavit asking that defendant be first placed upon trial. They having failed to agree as to the order of trial, the presiding judge ordered the trial of defendant. This was in strict compliance with the statute. Gen. Laws 1887, p. 33.
2. During the same term of the court, and after the defendant's conviction, Grantham was tried and acquitted. Defendant sought a new trial for the testimony of Grantham. In support of this ground of his motion he filed the affidavit of Grantham and A.J. Spencer. The facts set forth in the affidavits are competent evidence; they are admissible, material to the issue, and of the greatest importance to the defendant, and if credited by the jury, would in all probability change the result on another trial.
The theory of the State was, that the two men who perpetrated the robbery were defendant and Grantham. John Bird, one of the injured parties, identified them as the robbers. It was at night. Grantham swears that he was not present at the scene of the crime, and was not with defendant at that time. This is corroborated strongly by Spencer, whose testimony is shown to have been ascertained subsequent to defendant's conviction. The facts embodied in the affidavits were not controverted by the State. John Bird was the only witness who identified the parties, and if he was mistaken in this matter as to Grantham, it is probable that he was also mistaken as to the identity of defendant. The jury found that he was mistaken as to Grantham's presence and participancy in the robbery. While Grantham is not informed as to whether defendant engaged in the robbery or not, yet he does swear most positively, that he was not with defendant and did not engage in the robbery. As presented by this record, the motion for a new trial should have been granted. Helm v. The State, 20 Texas Cr. App., 41; Rucker v. The State, 7 Texas Cr. App., 549; Willson's Crim. Stats., sec. 2544.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.