
    BARKER v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1914.
    Rehearing Denied March 11, 1914.)
    Criminad Law (§ 942) — New Trial — Newly Discovered Evidence.
    Accused was convicted of concealing stolen property taken from a burglarized store. The state’s evidence was given principally by H., an accomplice, who, with D., was arrested for the burglary. H. turned state’s evidence, and testified that D. was present and participated in the burglary. After accused was convicted, D. was discharged after trial, and accused’s motion for new trial contained a written statement by D. that he would testify that he was not present at the burglary, as testified by H., and had nothing to do with it. When accused was tried, D. was in jail, so that he could not then testify for accused under the statute. Held that, since D.’s testimony was material, and accused had no previous opportunity to procure it, it was error not to grant accused a new trial on that ground.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    Appeal from District Court, Williamson County; Chas. A. Wilcox, Judge.
    Joe Barker was convicted of receiving and concealing stolen property, and appeals.
    Reversed and remanded.
    J. E. Taulbee, of Georgetown, and W. E. Ramsey and C. L. Black, both of Austin, for appellant. H. N. Graves, Co. Atty., of Georgetown, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

Appellant was convicted of receiving and concealing stolen property; his punishment being assessed at two years’ confinement in the penitentiary.

The state’s case is shown by the testimony of a confessed accomplice, Hugh Davis. A house in Elgin, Bastrop county, was burglarized. The theory of the state was that Hugh Davis, John Davis, and some negroes committed the burglary, and appellant, living 10 or 12 miles away in Williamson county, received some or all of the goods taken from the house. There is no contention that appellant had anything to do with the burglary; that is, he was not present at the time and place the house was entered. The state’s theory was he knew of and consented to the burglary in advance of its perpetration, and subsequently received the stolen goods. The state’s case was made, as before stated, by the confessed accomplice, Hugh Davis, and such corroboration as could be adduced. The parties were arrested and carried to Bastrop county, and Hugh Davis turned state’s evidence, and one of these parties, named Dech-erd, was kept in jail in Bastrop.' This occurred in February. Appellant was convicted on the 27th of June, at which time Decherd was still in jail in Bastrop county. Hugh Davis’ testimony, and the state’s theory, was that Decherd was present, participating in the burglary. On the 1st of July, after appellant’s conviction in June, Decherd was discharged from custody in Bastrop county and relieved of prosecution. Appellant obtained his statement in writing, sworn to, and appended it to his motion for new trial. In this statement Decherd states that he would testify that he was not present at the burglary and had nothing to do with it. In other words, he would have contradicted Davis’ testimony at all points, so far as he (Decherd) was concerned.

This was a very important matter. It was necessary for the state to show the burglary at Elgin, and appellant’s subsequent connection with the goods taken from the house. Hugh Davis’ statement was the state’s case, as he was the only witness who testified to his own presence at the burglary and that of Decherd. Decherd could not testify at the time appellant was tried, because he was in jail under a charge for the burglary. Under the statute, therefore, he could not testify for the defendant. Appellant could not obtain a severance, but the first opportunity appellant had to avail himself of Decherd’s testimony was after the state had discharged him from custody. This testimony was material, and under our decisions entitled the defendant to a' new trial. The rule is laid down in the Rucker Case, 7 Tex. App. 549, as follows: “There can be no doubt at this day as to the rule, or the correctness of the rule in proper cases, as now established in this state, that where two are jointly indicted, and one is tried and convicted, and subsequently the other is tried and acquitted, a new trial will be granted the former to obtain the testimony of the latter, where it appears that the new evidence is legal and competent and material to his defense.”

This rule has been followed in a great number of cases, some of which are collated in Cox v. State, 63 Tex. Cr. R. 498, 140 S. W. 445. In Gill v. State, 56 Tex. Cr. R. 202, 119 S. W. 684, 17 Ann. Cas. 1164, the same rule is followed. Quoting from that decision we find this language: -“He would have testified that neither of the persons engaged in the robbery of himself and Van Rooyen was appellant; that the voice of neither of these parties was the voice of appellant, or similar to the voice of appellant. The affidavit contains a full statement of the immediate facts touching the robbery, which would have strongly contradicted Van Rooyen’s testimony, and would have been distinctly favorable to appellant. After his acquittal, he would have been a competent witness in the case. Before acquittal, his testimony was unavailable. It is well settled that if, after the defendant is tried and convicted, his code-fendant is tried and acquitted, the testimony of the latter is held to be newly discovered. This is so thoroughly settled in this state as to no longer be debatable. Sanders v. State, 52 Tex. Cr. R. 465, 107 S. W. 839 [124 Am. St. Rep. 1101]; Lyles v. State, 41 Tex. 172 [19 Am. Rep. 38]; Rich v. State, 1 Tex. App. 206; Huebner v. State, 3 Tex. App. 458; Williams v. State, 4 Tex. App. 5; Gibbs v. State, 30 Tex. App. 581 [18 S. W. 88]; Helm v. State, 20 Tex. App. 41; Chumley v. State, 32 Tex. Cr. R. 255 [26 S. W. 406]; Howell v. State, 10 Tex. App. 298; Ellis v. State, 10 Tex. App. 540.” Many of the eases are also collated in Sanders v. State, 52 Tex. Cr. R. 465, 107 S. W. 839, 124 Am. St. Rep. 1101. These constitute a sufficient number of cases to show that this is the settled rule in Texas.

Decherd had not been tried nor convicted. He had been held as a party to the burglary; but the state, failing in its case in some way or other, discharged him from custody. He then became a competent witness. He could not be used by tbe defendant until after be was discharged. Tbis occurred on tbe 1st of July, after appellant's conviction on tbe 27th of June. He procured bis affidavit and made tbe showing at tbe earliest practicable moment. It would have been material testimony to tbe defendant, striking at tbe very heart of the testimony .of the accomplice, Davis. What tbe jury would have decided with tbis man’s testimony before it wo.uld be conjectural, of course; but it was material testimony, and tbis court could not decide that question, nor could tbe trial court. It was a matter for the jury. They may have believed him; and, if so, it would have been strongly persuasive towards an acquittal.

There is another question in the case, which we deem unnecessary to discuss, inasmuch as it will not occur upon another trial in tbe condition, as here presented. John Davis was connected with tbe burglary by tbe testimony of tbe accomplice Hugh Davis. Appellant filed an application for a continuance when tbis was developed on tbe trial of the case, and asked for a postponement or continuance. Upon another trial tbe testimony of tbis witness may be obtained. If be would testify as contended by appellant, it would be very material evidence — as much so as Decberd’s.

Tbe judgment is reversed, and tbe cause remanded.  