
    CHENAULT v. STATE.
    (No. 4795.)
    (Court of Criminal Appeals of Texas.
    Feb. 27, 1918.)
    1. Criminal Law &wkey;>943 — New Teial — Newly Discoveeed Evidence.
    Where testimony relied on for conviction-was that of a confessed accomplice and another witness under indictment for several felonies, a new trial should have been granted for newly discovered evidence, directly contradicting the testimony of the accomplice material to the case.
    2. Criminal Law <&wkey;359 — Confession of Third Party — Admissibility.
    Where the identity of the offender is in issue, or his connection with the offense controverted, it is generally permissible to introduce evidence of acts and declarations of third parties which tend to show that they, and not accused, committed the offense.
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    John Chenault was convicted of burglary, and appeals.
    Reversed and remanded.
    Ratliff & Spencer, of Decatur, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of burglary.

The evidence shows that the smoke house of Mrs. Annie MeCfight was burglarized and certain meat stolen. John Hayse confessed that he committed the crime, and testified that his coprincipals were appellant and one Jackson. The corroboration relied upon was the testimony of a witness by the name of Stevens to a conversation of the latter with appellant, in which he confessed that he was connected with the offense. .Both the witness Playse and the witness Stevens admitted in their cross-examination that they were under indictment for a number of felonies, and also Hayse admitted the commission of other offenses involving ■ moral turpitude. Each testified that they had no promise of immunity, but that they were encouraged to»entertain hope of leniency from their conversation with the prosecuting officers.

In connection with the motion for new trial it was shown that since the giving of his testimony the witness Stevens had pleaded guilty to eight cases of burglary and the witness Hayse to nine cases of burglary; that the punishment assessed against Stevens in each case was five years’ confinement, in the penitentiary, and that against Hayse in each case was two years’ confinement in the penitentiary, and that the sentences of each of them had been suspended in all said cases. Just how this was accomplished was not explained and not easy to divine, inasmuch as the suspended sentence law contemplates that, when one is-convicted of a felony, he shall not in another case have the benefit of a suspended sentence. In connection with the motion for new, trial appellant produced affidavits of three witnesses upon whom he relied as furnishing newly discovered evidence entitling him to a new trial. One of these witnesses testified that some time before the trial of appellant the witness Hayse had, in conversation with him, stated that he and a party by the name of Chastain had stolen the widow McCright’s meat, and that no one but himself and Chastain were connected with it. This witness stated that he did not disclose these facts until after the conviction of the appellant Chenault and his codefendant Jackson, and indicated that he then disclosed it because of his surprise that they were charged and convicted of the offense which Hayse had told him had been committed by him and Chastain.

Substantially the same testimony was given by two - other witnesses whose affidavits were produced and used in the hearing of the motion for new trial. There is nothing to throw suspicion upon the testimony of these witnesses, and in fact the truth of their statements is not controverted. Nor is there anything in the record to suggest the lack of diligence in securing this testimony. It is newly discovered, and while it would be usable to impeach the witness Hayse, it does not acquire its materiality solely as impeaching testimony. It comes' within the principle which influenced the decision in Piper v. State, 57 Tex. Or. R. 605, 124 S. W. 661, and is directly in line with the case of Taylor v. State, 49 S. W. 389, where the ruling was that, where the reliance was upon the testimony of a confessed accomplice supported by ■weak corroboration, newly discovered evidence of contradictory statements material to the case and made by an accomplice would require a reversal.

The appellant denied any connection with the offense. In a case where the identity of the offender is in issue or the connection of the accused with the offense is controverted, it is generally admissible to introduce evidence of the acts and declarations of third parties which tend to show that they and not the accused committed the offense. Under this rule, the confession of another has been held admissible. Harrison v. State, 47 Tex. Cr. R. 393, 83 S. W. 699. Other cases in point are Jemison v. State, 43 Tex. Cr. R. 456, 66 S. W. 842; Manuel v. State, 48 Tex. Cr. R. 542, 89 S. W. 645 ; Silvas v. State, 71 Tex. Cr. R. 213, 159 S. W. 223; Pace v. State, 61 Tex. Cr. R. 438, 135 S. W. 379. See, also, cases in Branch’s Ann. P. C. p. 129.

The appellant, we think, showed himself entitled to a new trial, and the court erred in refusing it.

For which reason the judgment of the lower court is reversed, and the cause remanded.

PRENDERGAST, J., absent. 
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