Counsel for the State points out that we were in error in the original opinion when we stated that the conviction was for unlawful assembly. The conviction was for engaging in a riot. The original opinion properly stated the punishment.
Article 651, C. C. P., reads as follows: *Page 302
"Where two or more defendants are prosecuted for an offense growing out of the same transaction, by separate indictments, either defendant may file his affidavit so stating, and that the evidence of such party or parties is material for the defense of the affiant, and that affiant believes that there is not sufficient evidence against said party or parties to secure his or their conviction; and such party whose evidence is so sought shall be tried first. Such affidavit shall not, without other sufficient cause, operate as a continuance to either party."
Article 395, C. C. P., provides:
"An indictment is the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense."
We quote Article 413, C. C. P., as follows:
"An 'information' is a written statement filed and presented in behalf of the State by the district or county attorney, charging the defendant with an offense which may by law be so prosecuted."
In view of the fact that the prosecution proceeded upon complaint and information, it is the State's contention that Article 651, supra, relating to severance, was without application. We are unable to agree with this contention. The statutes relating to severance as they existed in 1917 were re-enacted by the Legislature in 1925 in substantially the same language upon the adoption of the Revised Criminal Statutes. In Ligon v. State, 198 S.W. 787, it is shown that the opinion was rendered November 14, 1917. The prosecution in that case was upon complaint and information charging an unlawful assembly. The co-defendants of Ligon were charged by separate informations. The judgment of the court below was reversed because of the denial of Ligon's application for a severance. In view of the re-enactment of the statute dealt with in Ligon's case in substantially the same language, we are constrained to hold that the Legislature approved the interpretation of such statutes previously given by this court in the opinion referred to. We quote from Parrish v. State,71 S.W.2d 274, as follows:
"On the facts before it in the Martin Case, supra, the court, by a unanimous opinion, held that there was error in refusing to submit to the jury the question of a suspended sentence. After the decision of the Martin Case, the Legislature in 1925 (in articles 776 to 781, inclusive) re-enacted the Suspended Sentence Law without change of verbiage. Such re-enactment has *Page 303 been generally regarded by courts and text-writers as equivalent to a re-enactment of the statute amounting to legislative approval of the interpretation of the statute previously given by the courts."
See, also, Lamkin v. State, 136 S.W.2d 225, and authorities cited.
All other contentions made by the State in the motion for rehearing have been carefully considered and are deemed to be without merit.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.