Many precedents are cited by the appellant in support of his contention that the acquittal of Moore subsequent to the conviction of the appellant entitled him to a new trial so *Page 125 that on such trial he might have the benefit of the testimony of Moore. From the facts it appears that out of the same transaction both Moore and appellant were indicted for the possession of intoxicating liquor for the purpose of sale. Some two weeks after the appellant's conviction, Moore was tried and acquitted. If the appellant's position is comprehended, it is that by Moore's acquittal; the appellant was entitled, as a matter of right, to a new trial, and that in denying it the trial court was in error.
The cases upon which the appellant relies are Barker v. State, 73 Tex.Crim. Rep., 164 S.W. 383, 384; Baggett v. State, 65 Tex.Crim. Rep., 144 S.W. 1136; Clark v. State, 69 Tex.Crim. Rep., 155 S.W. 213; Douglas v. State, 104 Tex.Crim. Rep., 284 S.W. 549.
The principle is not regarded as broad as the appellant contends. The rule obtaining, as understood, is that laid down in Rucker's case, 7 Texas App., 549, as follows: "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."
An essential element is that it appear that the testimony of the acquitted person be "legal and competent and material." So far as the details are stated therein, the cases cited by the appellant are in accord with the rule stated in Rucker's case, supra.
A motion for a serevance is not an essential predicate for a motion for new trial on the ground under consideration. There are other cases to the same effect, but so far as the writer is aware, in every such case in which there has been a new trial granted, the facts before the court on the motion for new trial have been such as to bring it within the principle announced in Rucker's case, quoted above.
In a motion for new trial based upon the acquittal of a co-defendant, his testimony is regarded as newly discovered evidence, and so far as applicable the statutory provisions and judicial interpretation pertaining to newly discovered evidence obtains. One of the statutory grounds for a new trial upon newly discovered evidence is that the new testimony be material to the defendant. See article 753, subd. 6, C. C. P. To satisfy the court on appeal, it is essential that the new evidence expected from the released co-defendant be brought before the court. The decisions upon the subject will be found in Vernon's Ann. Tex. C. C. P., 1925, vol. 3, p. 13, note 25.
In the present appeal, the evidence expected from Moore is not contained in the record. If, on the hearing in the court below, the evidence *Page 126 was adducd, there was no disclosure of the expected evidence of Moore, or if the evidence heard was regarded by the trial court as not justifying a new trial, it was within the discretion of the trial court to refuse to grant the motion. Having exercised his discretion and the evidence before him not being here, this court is without authority to overturn the judgment. See Vernon's Tex. C. C. P., supra, p. 15, note 26, and many cases cited. It appears from the statement of facts on the motion for rehearing that on the trial of Moore there were used the same witnesses for the state as were used in Denning's case. From the testimony of the district attorney on motion for new trial, the following is quoted: "The testimony wasn't the same; the testimony shows that Denning was in the back seat of the car and there was never any proof that Moore was in the back seat. They were both arrested at the same time and by the same officers, and the state used the same witnesses against both of them."
It further appears that Denning and another person other than Moore were discovered pouring whisky from fruit jars into pint bottles; that the whisky was in the car between the front and back seats.
The statement of facts on the trial of Denning is made a part of the statement of facts on motion for new trial. It appears that Denning testified that he had made arrangements to get whisky without the knowledge of Moore, and that learning that Moore was going to the country in his car after some chickens, Denning obtained permission to ride in the car. He had some pint bottles in a suit-case which he put in the back part of the car. While Moore had gone to look at the road, the appellant and Brant, his companion, were bottling the liquor.
The appellant's testimony indicates that Moore was not aware of the fact that he was going after whisky or that he had whisky. According to the appellant's testimony, he had two gallons of whisky in his possession. His sole defense was that he had it for beverage purposes and not for sale.
Upon the record before us, we are forced to the conclusion that in overruling the motion for new trial, no error is shown to have been committed by the trial court.
The motion for rehearing is overruled.
Overruled.
ON REQUEST FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.