Appellant was convicted of abortion, and his punishment assessed at five years in the penitentiary, and he appeals. After the State had announced "ready for trial," and before the defendant had announced, he presented to the court the following motion:
"Now comes the defendant, William King, and, being duly sworn, on oath, shows to the court: That one T.B. Herring stands indicted in this court, in case No. 578, with an offense growing out of the same transaction which is the basis of the indictment herein against this defendant, and that the testimony of the said T.B. Herring is material for the defense of this affiant, and that this affiant verily believes there is not sufficient evidence against said T.B. Herring to secure his conviction. Wherefore defendant prays that said T.B. Herring be first placed upon trial, that this defendant may have the benefit of his testimony. That said case is No. 578 against T.B. Herring, and both growing out of the same transaction. [Signed] W.E. King.
"Sworn to and subscribed before me this March 27th, 1895. J.H. Stewart, Clerk, by I.A. Moore, Deputy.
"Filed March 27th, 1895. J.H. Stewart, Clerk, by I.A. Moore, Deputy."
The court overruled the motion, to which appellant excepted, and reserved his bill of exception. To the bill the learned judge appends the following explanation as a reason why he did not grant the motion:
"The defendant, T.B. Herring, was not indicted as a principal, but as an accomplice, to the abortion charged against William King, and with this qualification the above bill is signed; and the court's attention is also called to the evidence in the case as to the merits of this bill. [Signed] "Chas. F. Clint, Judge," etc.
The last Act upon this subject is the Act of 1887, p. 33, Art. 669a, C. C. P., as follows: "Where two or more defendants are prosecuted for an offense growing out of the same transaction by separate indictment, either defendant may file his affidavit in writing that one or more parties are indicted for an offense growing out of the same transaction for which he is indicted; and that the evidence of such party or parties is material for the defense of the affiant, and that the affiant verily believes that there is not sufficient evidence against the party or parties whose evidence is desired, to secure his or their conviction, then such party or *Page 478 parties for whose evidence said affidavit is made, shall be first tried, and in the event that two or more defendants make such an affidavit and cannot agree as to their order of trial, then the presiding judge shall direct the order in which the defendants shall be tried. Provided that the making of such affidavit does not, without other sufficient cause, operate as a continuance to either party." Under the law as it existed before this Act, the defendant would have a right to ask for a severance, if jointly indicted, or if indicted by separate bill, and have the further right, by the proper affidavit, to have his codefendant first tried; and for this purpose, whether jointly or separately indicted, they are codefendants. But the last Act settles this question beyond any controversy. Whether indicted as a principal or as an accomplice, if the accomplice is guilty of abortion, they would both be guilty of the same offense. This view of the question is settled by article 91 of the Penal Code, which reads: "Persons charged as principals, accomplices, or accessories, whether in the same indictment or by different indictments, cannot be introduced as witnesses for one another, but they may claim a severance, and if any one or more be acquitted, they may testify in behalf of the others." Here is a provision against their testimony before acquittal or nolle prosequi, and a provision that they may testify upon the severance; and this provision applies to all persons charged, whether as principals, accomplices, or accessories, and whether charged in the same indictment, or in separate bills. If they cannot testify for one another, it would not be just to refuse them the right to sever, and have the codefendant tried and acquitted in order to make him a witness. In Willeys v. State, 22 Tex.Crim. App., 408, the court below refused the severance, giving as a reason that he was not satisfied that it was a matter of absolute right that the defendants had a right to sever. In reply to this, Presiding Judge White says, "that, in our opinion, there can be no question as to the intention of the legislature to confer upon such defendants the right to demand a severance, and where they come within the terms of the statute, and demand such right, it is manifest error to refuse or deprive them of it." That case was reversed and remanded for that error, and perhaps others. It is not suggested in the explanation of the learned judge, who tried this case, that the granting of the motion would operate as a continuance to either party. We presume that, if this had been the case, it would have been so stated. The only reasons given are that Herring was not indicted as a principal, and that we we should look to the facts of the case. The statute expressly provides for cases in which some are indicted as principals, some as accomplices, and some as accessories. They all stand on the same footing, so far as this right is concerned. Being an absolute right, when the statute is complied with by the accused we will not look to the statement of facts, or anywhere else, to determine whether the testimony of Herring, if he had been acquitted, would have been material to the defendant. This is not required by the law. Counsel for the State, in their brief, seriously *Page 479 contend that this matter should be treated as an application to continue the case, and that, although the court may have erred in overruling the motion, yet that we can look to the statement of facts to ascertain whether injury has been done the appellant; contending that Herring, if acquitted and presented as a witness, would not have testified to any material facts for the defense. For a number of years, in this State, under the law in reference to continuances, there was no discretion ill the court, but the continuance was a matter of right. This law has been expressly changed in this respect. It now provides that the ruling upon the motion to continue is within the discretion of the court, and that it can be overruled, though the application complies with the statute, and, if convicted, the defendant would have a right to bring the matter before the court again on motion for a new trial. Then, in passing upon whether the court erred in overruling the motion, two matters must be looked to. Diligence being proper, was the testimony of the absent witness material? And was it probably true? If it was, a new trial should be granted. There are no such provisions relating to the right to sever. The statutes stand just as the law stood in regard to continuances for a long time — beyond the discretion of the court. But suppose we should adopt the view in this case suggested by the State, — look to the statement of facts to determine whether the appellant has been injured in refusing him the right to have Herring tried first, etc. By an inspection of this record, it will be found that Herring's testimony would be very material and beneficial to the defendant on several points. We have not the time to quote and insert all of the points upon which he could testify to facts material to the defendant. There was a motion, also, to continue the case for the absence of other witnesses. This matter will not arise again. The prosecutrix testified, over the objection of the defendant, that appellant killed the child, and came very near killing her. The fœtus was not delivered until eight or ten days after the last operation. She could not positively know that appellant killed the child, or came very near killing her. This was her opinion. The State had a right to prove by her the operation, how it affected her, who performed it, how she suffered, what the symptoms were, when the fœtus was delivered, and all about that matter, but had no right to introduce in evidence her opinion as above stated. We are of opinion that the statement to Dr. Staples by appellant, and which was offered in evidence by the appellant, and rejected and excluded by the court, was not admissible, under the circumstances of this case.
The indictment elects a certain act or method by which the abortion was procured, viz: that the appellant did "unlawfully and designedly thrust and force into the womb and private parts of Bertie Barger, a certain metallic instrument, calculated to produce abortion, and did then and there and thereby procure an abortion on the said Bertie Barger." The State introduced in evidence two meetings between appellant and Bertie Barger at secluded places, and that metallic instruments were introduced on both occasions. Counsel for appellant contended that the *Page 480 State should have been forced to elect upon which transaction to prosecute. We think not. The offense charged was abortion. The means used was set out as above stated, and the State must prove that the abortion was procured by this means. This is not a case in which the two transactions are represented as separate and distinct offenses committed, but two efforts to procure the abortion; and whether they have been made by the same method or means would have been admissible — the one to support that which is alleged in the indictment — with this qualifiction; that the means alleged must be shown to have produced the abortion. This disposes of all of the assignments necessary to be discussed in this case. For the errors pointed out the judgment is reversed, and the cause remanded.
Reversed and Remanded.
DAVIDSON, Judge, absent.