
    CAGEL v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    Ckiminad Law (§ 255) — Reception op Evidence — Evidence Receivable.
    Accused was charged with assault and battery, and T., the person claimed to have been assaulted, was also charged with the same offense committed, at the same time against accused. On accused’s trial T. was offered as a witness, but excluded upon a showing that he had been convicted of a felony and not pardoned, and after all of the evidence was introduced, accused requested the court to decide his case, a jury having been waived, which the court refused to do, stating that it would reserve its decision until the evidence was heard in the case against T., when T. would be permitted to testify for himself. T. testified in his own case, arid was acquitted, whereupon the court asked the jury if they considered accused guilty, and received an affirmative answer, when the court found a verdict against accused in his own case. Held, that the court’s action in deciding accused’s case on testimony introduced in T.’s case was erroneous, requiring a reversal.
    [Ed. Note. — Eor other cases, see. Criminal Law, Cent. Dig. §§ 539-541; Dec. Dig. § 255.]
    
      Appeal from Jefferson County Court; R. W. Wilson, Judge.
    Ed. C&gel was convicted of aggravated assault and battery, and appeals.
    Reversed and remanded.
    Blain & Howtb, of Beaumont, for appellant. O. E. Lane, Asst. Atty. Gen., for tbe State.
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Prom a conviction for an aggravated assault and battery on Gid Thomas, with a fine of $100 assessed, appellant appealed.

The allegations to make the offense an aggravated assault' and battery are, in effect: (1) That a serious bodily injury was inflicted ; (2) that a deadly weapon was used.

The state introduced but two witnesses, Harris and Gill, who testified; the appellant none. Appellant contends the evidence does not show an aggravated assault and battery, because it neither shows serious bodily injury, nor that a deadly weapon was used. It is unnecessary for us to pass on this question, in view of the fact that we must reverse the case on another ground.

By a proper bill appellant shows he was prosecuted for committing this offense on said Thomas. That in the same court, in the very next case said Thomas was prosecuted for the same offense against appellant, all growing out of the same transaction. That appellant waived a jury, and tried his case before the court. That in his trial the state offered said Thomas as a witness, but on objection of appellant, showing said Thomas had been convicted for a felony, served a term in the penitentiary, and had not been pardoned, the court could not permit him to testify. That after all the evidence in this case was introduced and the trial closed, appellant called on the court to decide his case. The court declined to do so, stating, among other things, he would reservé his decision until he heard the evidence in said next case against Thomas, at which time he would permit said Thomas to testify in his own behalf. That thereupon said case against Thomas was then tried before a jury, on which trial not only did said witnesses Harris and Gill testify, but several other witnesses also testified, as did said Thomas and appellant. That testimony is given in the bill, and is very material against appellant. That the jury acquitted Thomas. Thereupon the court asked the jury if they considered appellant guilty, and the jury replied affirmatively. That the court then found appellant guilty. It is clear that the court did not decide appellant’s case on the testimony introduced on his trial, but really on the evidence in the Thomas case, and the opinion of the jury in that case. This is against all law and reason. Persons accused of crime, however guilty, must be tried alone on the evidence introduced on the trial against them, and not on the evidence of the trial of another, or facts learned from some other source, For this error, this case will be reversed and remanded.

There is no other question raised, which will probably occur on another trial.

Reversed and remanded.  