Davis v. State , 33 Tex. Crim. 344 ( 1894 )

Appellant was convicted of burglary, and his punishment assessed at two years, from which he appeals.

It is only necessary to consider one question in this case. Appellant and his brother, Homer Davis, were indicted by separate indictments for burglary. The cause of Homer Davis was continued on his application on account of the absence of witnesses, and the case at bar was called. A motion for continuance on account of the absence of certain witnesses was also made in this case, but was overruled. Appellant then filed his motion for a severance, alleging that Homer Davis was charged with the same offense as himself; that there was not sufficient evidence against him to convict him, and his evidence was material to his (Ross Davis') defense; and praying that the case against Homer Davis be first called and he be placed upon trial. The motion was accompanied with a petition by Homer Davis praying the court to set aside the continuance granted in his cause; that he is ready to go to trial first; that all the witnesses for the State are present in the court house that were present when the State announced ready for trial in said case, so that no injury could accrue to the State. The court overruled both the motions and petition, and required appellant to go to trial. We think the court erred in so doing. Article 669a of the Code of Criminal Procedure declares, that when an application for severance is made, as was done in the present case, the party for whose evidence said affidavit is made shall first be tried. The appellant had a right to sever. The fact that a continuance had been granted in the case first called was immaterial, in view of the fact that the defendant at whose instance it was granted was praying for it to be set aside, thereby waiving his right to absent witnesses, and also showing that all the State's witnesses were still present in court.

We see no error in the charge of the court or his rulings in the cause except in the one specified, for which the judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.