
    PRICE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 11, 1912.
    Rehearing Denied Jan. 15, 1913.)
    Criminal Law (§ 589) — Continuance — Trial ox Another Defendant.
    Where the case of one of two defendants indicted for the same offense was transferred from one of the two district courts of Dallas county to the other, and no objection was made to the transfer- or effort made to have both eases transferred, and there was no suggestion that the present defendant’s case was in any way connected with the other’s case, or that the other would be ready for trial when his case was called, the court properly refused to continue the present case until after ■ the trial of the other defendant in the other court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1315; Dec. Dig. § 589.]
    Appeal from Criminal District Court, Dallas County; Barry Miller; Judge.
    Chick Price was convicted of keeping a gambling house, and he appeals.
    Affirmed.
    Albert Walker, of Dallas, for appellant. C. E, Lane, Asst Atty. Gen., for the State.
    
      
       For other oases see same topic ana section NUMBER in Deo. Dig- & Am, Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, -J.

Appellant was indicted, charged with keeping a gambling house. The indictment contains several • counts, but, as only the first count was submitted to the jury, we do not deem it necessary to discuss the grounds alleging the insufficiency of those counts. The first count charges an offense. The same grounds are attempted to be raised in this case as were passed on in the case of Parshall v. State, 62 Tex. Or. R. 177, 13S S. W. 759, as to the insufficiency of the indictment, the uncohstitutionality of the law, etc., and which were held adversely to appellant’s contention in the case. The questions were so thoroughly discussed in the Parshall Case we do not deem it necessary to do so again.

It appears there are two criminal district courts in Dallas county, one presided over by Judge R. B. Seay, and the other by Judge Barry Miller. Appellant was indicted by the grand jury impaneled in Judge Seay’s court, and returned by it into that court on December 4, 1911. There was also returned into Judge Seay’s court an indictment against J. B. Gouger, charging him with the same offense. After the return of the indictments in Judge Seay’s court, he, by order entered, transferred appellant’s case to Judge Miller’s court. This he was authorized and empowered to do in chapter 19, p. 106, Acts of the Special Session of the 32d Legislature, creating the court over which Judge Miller presides. No order was made transferring. the case against Gouger, and no request was made that it be transferred. When the ease was called for trial in Judge Miller’s court, a plea was filed setting up that an indictment was pending in Judge Seay’s court against Gouger “for an offense growing out of the same transaction for which this defendant was indicted in this ease,” and setting forth that the evidence of said Gouger was material to this defendant, and that defendant believed there was not sufficient testimony to secure a conviction of. Gouger. If the indictments had been pending in the same tribunal, this plea was sufficient to have required that Gouger be first placed on trial, but the plea makes it manifest, and so states, that the indictments are pending in different courts, and, while these courts under the law have authority to transfer cases from one court to the other, there is no effort made to have both cases transferred to to the same court. There is no suggestion that defendant or his attorneys have any connection with the Gouger Case, and no statement contained in the application that Gouger is or will be ready for trial when the case is called in Judge Seay’s court; no statement that that ease has ever been set for trial in Judge Seay’s court for any given time, and no statement that .Gouger is willing to be first tried, or any effort will be made to have that case tried before the adjournment of Judge Miller’s court for the term. Judge Müller in approving the bill does so with .the qualification: “To have granted this motion would have continued this cause until a ease could have been tried in a court over which I had no jurisdiction or control.” This right of a defendant separately indicted to have another indicted for an offense growing out of the same transaction first placed on trial is granted on condition that to do so will not -operate as a continuance. . Article 707, Code of Criin. Proc. In Locklin v. State, 75 S. W. 306, it appears that the appellant in that - case and A. K. Scott were indicted in Llano county for offenses growing out of the same transaction, and that later the court changed the venue of appellant’s case to Gillespie county, and, when his case was called for trial in the latter county, appellant filed an application in conformity with the statute, asking that Scott be first tried. The court said: “When the venue in appellant’s case was changed from Llano county, it does not appear that he objected on the ground that he desired a severance from Scott in order to procure his testimony, but he only objected generally to the change of venue. It may be if this objection had been urged at the time the court would not have changed the venue as to appellant, or, if he did, he might have changed the venue in both cases to Gillespie county, and in that event appellant could have exercised his right of severance, both cases being in the same jurisdiction. But here the two cases were pending in different counties; and, if the motion had been granted, it would necessarily have operated a continuance of the case. As we understand the statute, article 707, Code of Criminal Procedure, especially provides that the making of such affidavit for severance without other sufficient cause shall not operate as a continuance to either party. And see King v. State, 35 Tex. Or. R. 478 [34 S. W. 282]; Stouard v. State, 27 Tex. App. 1 [10 S. W. 442].” This question was before this court in Wilson’s Case, 46 Tex. Cr. R. '525, 81 S. W. 34, and Judge Davidson again held that where the indictments were pending in different courts, even though the severance had been granted when the cases were pending in the same court, the appellant was not entitled to have his case postponed until the other case could be tried in the court in which it was then pending. As the cases against this defendant and Gouger- were pending in different courts, the court did not err in overruling the motion. The reasons for such ruling are sufficiently stated in the cases herein cited.

There being no statement of facts accompanying the record, we are unable to pass on the other questions sought to be raised in the motion for new trial.

The judgment is affirmed.  