J. P. Gibbs v. The State, 30 Tex. Ct. App. 581

WHITE, Presiding Judge. The indictment in this case was a joint one for murder against J. P. Gibbs, John Gibbs, and Andrew Sutton, and the parties were put upon their trial jointly. The result of the trial was, that after the evidence for the State had been submitted, the district attorney made a motion, which was granted by the court, and the prosecution, in so far as defendant John Gibbs was concerned, was dismissed. As to the defendant Andrew Sutton, the verdict of the jury was, that he was not guilty, and he was discharged.

This appellant was convicted of murder in the first degree, and his punishment assessed at a life-term in the penitentiary. In his motion for a new trial, among other grounds stated in said motion was, that the new trial was sought in order that defendant might obtain the testimony of his codefendant Andrew Sutton, who had been jointly tried with him, and who had been acquitted; and in support of this ground of the motion he sets forth the affidavit of said Andrew Sutton, stating in full what his testimony would be upon another trial of the case.

This testimony, as set forth in the affidavit of Sutton, is certainly most material and important to defendant, and we can not say that it would or should be disregarded on account of Sutton’s supposed complicity in the commission of the crime, nor that it will not probably change the result of the case on another trial. In Rucker vs.

The State, 7 Texas Court of Appeals, 549, it is said: “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;’7 citing Lyles v. The State, 41 Texas, 172; Rich v. The State, 1 Texas Ct. App., 206; Huebner v. The State, 3 Texas Ct. App., 458; Williams v.

The State, 4 Texas Ct. App., 5; and Brown v. The State, 6 Texas Ct. App., 286. See the same question discussed subsequently in the cases of Helm v. The State, 20 Texas Ct. App., 41; Barron v. The State, 23 Texas Ct. App., 462; Jones v. The State, 23 Texas Ct. App., 501; Smith v. The State, 28 Texas Ct. App., 309. Because in our opinion the court should have granted a new trial, and erred in refusing same upon the ground above stated, the judgment is reversed and the cause remanded. Reversed and remanded. Judges all present and concurring.