When the case was called for trial appellant filed an affidavit for a severance. It was agreed among the parties and recognized by the court that Cass should be tried first. He was placed upon trial, and the jury retired. The case against appellant was called over his protest. He asked the court to postpone his trial until the jury in the Cass case had returned a verdict. There was no continuance sought and there was none necessary, and the request would not have continued the case. The court, overruled the motion and put appellant upon trial for robbery. This was error which ought to have reversed this judgment. For collation of authorities see Branch's Crim. Law, sec. 742. The court says, in substance, the reason he did this was that he heard Cass testify in his trial and he would not have testified as appellant insisted he would testify. Cass testified on the trial that he did not participate in the robbery. That much at least is shown by the court by appending Cass' testimony to the bill. The theory of the State was that appellant and several others, among whom was Cass, participated in the robbery, and it was done in pursuance of a conspiracy and acting together. If Cass had testified that he did not participate in the robbery and was not present and had nothing to do with it, then that part of the State's case, if Cass was telling the truth, would necessarily fail. This would have within itself been important testimony to the defendant, but it is asserted by appellant that he would testify favorably to defendant, that he, defendant, did not participate in it. I am not stating the details but the substance. Mr. Branch lays this rule down tersely and correctly: "If request for severance, properly made, is overruled, the statement of facts will not be looked to in passing upon the question as to whether the court erred. King v. State,35 Tex. Crim. 472; Anderson v. State, 56 Tex.Crim. Rep.." He also says the "defendant is entitled to a severance as an absolute right, when statute is complied with," citing King v. State, supra; Dodson v. State, 32 Tex.Crim. Rep.; Willey v. State, 22 *Page 77 Texas Crim. App., 408; Shaw v. State, 39 Tex.Crim. Rep.. The record further shows that Cass was acquitted, but on a subsequent trial, and in fact it seems from the record all the defendants were acquitted except appellant. Because the trial court comes to the conclusion that the witness may not swear as the defendant thinks he will, or to facts which in the judgment of the court would not he sufficient to meet the State's case, does not authorize him to refuse the severance and force the defendant upon his trial in the face of a request. The jury is the body that tries the defendant on the facts. The court is not authorized to take away these mooted issues from the jury and decide them himself, and sustain his action in refusing the severance. He may not believe the witness; he may not believe the cogency of the testimony, yet if the facts are material and the jury does believe them, then it is error to refuse the severance, or having granted the severance, then to change it without the consent of the defendant as to the order of trial. Looking at this case from either standpoint, that set out by the court, towit: that Cass testified he did not participate in the robbery; or from the standpoint of the defendant, that Cass would testify that he, defendant, did not participate in the robbery, either view of the testimony would be beneficial to the defendant. Where the State relies upon a conspiracy or agreement to do a thing between certain parties, and one of those parties testified this was not true and he did not participate in it and had nothing to do with it, it is a direct and serious attack upon the State's theory of conspiracy. Of course, if Cass would testify, which is asserted by appellant in his bill of exceptions, that appellant did not participate in the robbery and had no connection with it, it would be of the utmost importance. So whether we look at it from the standpoint of the court's statement or the standpoint of the defendant, this evidence was material. Any fact or circumstance which disproves or tends to disprove the State's theory or attacks it from any material standpoint, is essentially a material fact; and it is also shown that the other defendants were acquitted. If all the defendants were acquitted except the defendant, and the State's case was conspiracy, and this evidence was introduced to show that those witnesses may have been very important to the defendant, because if none of them engaged in the conspiracy for which the State contented, then the State's whole case was attacked, and from a most serious standpoint.
There is another question. When defendant's case was called for trial, and the court overruled his motion to postpone to await the verdict in the Cass case, it seems there were five jurors of the regular panel who were not sitting in the Cass case. The court of his own motion excused these jurors from attendance on this case and over the objection of the defendant. He says he did so because the jurors had heard the testimony in the Cass case. That was his statement. It seems, however, there was other testimony to the effect that they were not in the court-house, therefore did not hear it. If they had heard the testimony, this may or may not have disqualified them. If from hearing the evidence *Page 78 in the Cass case they had made up their minds, or had reached the conclusion that appellant was guilty, then they could have been challenged for cause by the defendant. If they had reached the conclusion that he was not guilty, then they would be subject to challenge by the State. What their conclusion about it, if they had any, is not shown. The court simply excused them peremptorily of his own motion from attendance on the court, or rather as jurors in the case, over the objection of defendant. I do not understand that the court had this authority. They were regular jurors, and if the defendant had shown they were disqualified in any way, then the court could have acted upon it, but the court not only did this under the circumstances, but he immediately ordered the sheriff to bring in twenty-two jurors from whom to select a jury to try the defendant. What conclusion these five jurors excused by the court of his own volition, or on his own motion, had reached is not shown, if they had any. It may have been favorable to the defendant inasmuch as the jurors in the previous cases had acquitted the other defendants. The judge assigns as the reason for excusing them from sitting on the case, that they had heard the testimony in the other case, but this seems to be a controverted fact; and it may be said under the authority of Leonard v. State, 53 Tex.Crim. Rep., that this qualification of the judge ought not to be considered. This was an independent fact which if he desired to testify about it he should have taken the witness stand. It is not one of those matters that he is authorized to insert in his qualification to the bill. I do not care to amplify these matters further.
Without going into the other questions suggested for reversal, I have thought it expedient that I should at least say this much in protest of the affirmance of this judgment.