To grant the State's motion herein would be to set the precedent that in every case where the witness for the State upon whose testimony conviction was had, made affidavit or testified in support of the motion for new trial, that his former testimony was false, then the motives and reasons for such retraction might be shown by the State and if in the opinion of the trial court such motives were corrupt or such reasons insufficient, the motion for new trial based upon such retraction, might be properly refused. It seems to us that the reason for granting a new trial in such case goes deeper and rests on the proposition that a citizen should not be punished or deprived of his life or liberty upon the testimony of one whose veracity is thus shown to be wanting. In this case when the witness originally gave evidence for the State upon which conviction was had, he was in jail awaiting action by the grand jury against him upon two charges of felony. In this condition he gave testimony favorable to the State. In resisting the application for new trial based on the sworn retraction of the truth of his testimony by said witness, the State now contends that the association in jail *Page 640 since the trial herein, of appellant and said witness, has brought about this retraction, and in addition the State supports its claim by proof of officers that they did not coerce the witness to give the testimony for the State upon the original trial, as is also asserted in appellant's application. These matters might form the basis of a perjury prosecution against said witness and perhaps ought to do so, but we doubt the soundness of the position of the State which in one breath urges that the witness is now in retracting a perjurer, and in the next, — because he is now believed to be such, a conviction had on his testimony should not be set aside but be permitted to stand by the overruling of the motion for new trial. We regret we can not agree with this contention.
The motion for rehearing will be overruled.
Overruled.