Where two persons are charged with different offenses it does not follow in all instances that they are entitled to a severance. The subject was discussed at some length in the case of Clark v. State, 81 Tex.Crim. Rep.. The purpose of Art. 727 (now Art. 651, C. C. P.), and its relation to the old Article 91 of the Penal Code and Art. 791, C. C. P., in dealing with the contention of the accused that one who was charged with theft and one who was charged with receiving stolen property came within the purview of the severance statute, it was said in the Clark case, supra:
"In our opinion article 727, Code of Criminal Procedure, was not intended to change any existing rule of evidence, or to modify article 791 of the same Code nor article 91 of the Penal Code, but was intended only to designate the procedure by which a defendant might make available to himself the testimony of one who was prohibited from testifying in his behalf by reason of Articles 791 *Page 212 and 91, supra, and that it has no application to this case because the persons charged with receiving stolen property were charged with a different offense from that which appellant was charged and the law did not forbid them from testifying for him. The transaction out of which appellant's offense grew was the taking of the property — the theft. The transaction out of which the offense with which the witnesses were charged grew was receiving the property after it was stolen."
See Patterson v. State, 105 Tex.Crim. Rep.; Cotton v. State, 92 Tex.Crim. Rep..
The motion is overruled.
Overruled.