Dodson v. State , 32 Tex. Crim. 529 ( 1894 )

Appellant was convicted of horse theft, and prosecutes this appeal.

When his application for a continuance was overruled, the defendant requested time in which to prepare his affidavit, under the provisions of article 669a of the Code of Criminal Procedure, for the purpose of having one Perry, who was separately indicted for the same transaction, first placed upon his trial, so that the defendant might obtain the testimony of said Perry in his behalf. The request was refused, because, as stated by the court, he held "the overruling of defendant's application for continuance to be equivalent to an announcement on the merits."

The defendant had the right under the statute to have Perry tried, so that he might use his testimony in case he should be acquitted. In this respect the statute is mandatory. There was no contention between the defendants as to who should be first placed on trial. We do not think the "overruling of defendant's application for continuance to be equivalent to an announcement on the merits." The statute does not state at what time the severance may be demanded. The remaining errors complained of will not occur on another trial, hence are not discussed.

For the error indicated, the judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.