The offense is turkey theft. The punishment assessed is confinement in the state penitentiary for a term of two years.
Appellant's first complaint is that the court erred in overruling his motion to quash the indictment. We have examined the same and deem it sufficient to charge the offense.
His next complaint is that the court erred in overruling his application for a severance, duly verified as required by law. It appears from the indictment that Gus Walker, Fannie Walker and the appellant were jointly indicted for the theft of seven turkeys, alleged to have been stolen from Forrest *Page 170 Brown on the night of November 14, 1938. Appellant, in due time, filed a motion for severance in which he averred that the testimony of Gus and Fannie Walker was material to his defense and that he believed the evidence was not sufficient against them to secure their conviction. He requested that Gus should be tried first and Fannie next before he should be tried. The court overruled the motion without stating any reason therefor.
Under Art. 651 Cow. C. P. and the decisions of this Court, appellant was entitled to a severance unless it would have caused a continuance of the case, provided his motion was in proper order and assuming that it was not controverted by the State. There is nothing in this record to show that a continuance would have resulted by granting appellant's motion. It appears from the indictment that all these parties were jointly indicted, and it further appears that appellant alone was tried. It is our opinion that in the absence of a verified motion by any of appellant's co-defendants asking that appellant be tried first, he was entitled to have them placed on trial first, in the order indicated in his motion. In the case of McBride v. State, 121 Tex.Crim. Rep.,51 S.W.2d 337, this court said: "When two or more persons are charged with the same offense and their cases are pending in the same court, unless a continuance would result, the duty to grant a severance, when properly sought, is imperative." See, also, Vargas v. State, 104 Tex.Crim. Rep., 284 S.W. 564. This court has many times held that the purpose, object, and spirit of the severance statutes is to award the accused, under proper circumstances, the testimony of a codefendant, free and untrammeled as near as possible from any indictment. It appears that in the instant case this legal right was not accorded to appellant. See Terry v. State, 76 S.W. 928; Smith v. State,116 S.W. 572, Peddy v. State, 40 S.W.2d 153.
Appellant also complains of the court's action in failing to instruct the jury with reference to the law of exculpatory statements and declining to give his special requested instruction with reference thereto. The evidence, adduced by the State, reflects that when the appellant was arrested and questioned about where he had obtained the turkeys, he immediately told the officers that he had gotten them from his mother in Lavaca County. This proof was offered by the State, and unless the State proved the falsity of the statement, appellant was entitled to an acquittal. Under these facts, the court should have instructed the jury correctly and distinctly as to the effect of such exculpatory statements. See Robidoux v. *Page 171 State, 34 S.W.2d 863; Otts v. State, 116 S.W.2d 1084 and the many authorities there cited and discussed.
Appellant also in due time objected to the court's definition of principals and in failing to instruct the jury on the converse of the law of principals. After a very careful review of the record, we have reached the conclusion that the evidence did not require an instruction on the converse of the law of principals. We do not deem it necessary to discuss the many other contentions advanced by appellant as they may not arise again on another trial.
The judgment is reversed and the cause remanded.
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.
ON STATE'S MOTION FOR REHEARING