
    DOUGLAS v. STATE.
    (No. 9958.)
    (Court of Criminal Appeals of Texas.
    June 2, 1926.)
    Criminal law &wkey;>938(5).
    Where indictments ágainst others for complicity in killing were dismissed, refusal of new trial to accused on affidavits of such others held error; credibility of affiants being for jury.
    Appeal from District Court, San Jacinto County; J. L. Manry, Judge.
    Joe Douglas was convicted of murder, and he appeals.
    Reversed.
    Geo. E. Gordon, of Houston, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Dyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of San Jacinto county of murder; punishment fixed at confinement in the penitentiary for life.

We find no error in the matters appearing in this record save in the refusal' of appellant’s motion for new trial. It is made to appear that Robert Wanza, Scott White, Tom Wanza, Burrell Johnson, and Sim White were each and all indicted for complicity in the killing which forms the basis for the instant prosecution. Their cases were pending at the time of this conviction. It is made to appear in conjunction with appellant’s motion for new trial that, after he was convicted, the state dismissed the cases against said named parties. The affidavits of each of said parties are appended to, and made a part of, the motion for new trial, and same appear to present matters of unquestioned materiality to appellant’s defense. The issue made as to the credibility of said parties by the state’s resistance to the motion for new trial is one to be decided by the trial jury, and is not one for decision by either the court below or this court. Many authorities are cited on page 788 of Vernon’s Code of Criminal Procedure supporting the proposition that, where other parties are indicted for complicity in the same crime, and are acquitted or their cases dismissed after the conviction 6f the appellant, this should have entitled him to a new trial. See, also, Gibbs v. State, 80 Tex. App. 581, 18 S. W. 88.

For the error of the. court in refusing to grant appellant’s motion for new trial, the Judgment will be reversed and the cause remanded.  