
    James Davis, Jr. v. State
    No. 33,706.
    October 25, 1961
    
      W. E. Martin, Houston, for appellant.
    
      Frank Briscoe, District Attorney, Carl E. F. Dally, Edward D. Michalek, Jr., Assistants District Attorney, Houston, and Leon Douglas, State’s Attorney, Austin, for the state.
   DICE, Judge.

The offense is aggravated assault; the punishment, 270 days in jail and a fine of $500.

No statement of facts of the evidence adduced upon the trial accompanies the record.

By Bill of Exception No. 1 it is certified that prior to announcing ready for trial, appellant filed a motion for severance, duly verified, praying that one C. L. Jones who then stood charged by information with an offense of aggravated assault growing out of the same transaction as that charged against appellant, be first tried. Said motion was by the Court overruled with an exception reserved by appellant.

The motion complied with the statutory prerequisites of Art. 561 V.A.C.C.P., and should have been by the Court sustained. See Nichols vs. State, 149 Tex. Cr. R. 530, 196 S.W. 2d 925 and Chapa vs. State, 164 Tex. Cr. R. 554, 301 S.W. 2d 127.

For the error in overruling the motion for severance, which error the State concedes in its brief, the judgment is reversed and the cause remanded.

Opinion approved by the Court.  