One of appellant’s grounds in his motion for a new trial in the lower court was that since his trial and conviction the State had dismissed her prosecution by separate indictment against one Thomas Eolia, charged as an accessory or accomplice to this same identical murder, whose testimony, though material to his defense, could not be availed of by defendant on his trial on account of the said prosecution being at the time pending against said witness.
Under our statute, “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, or the prosecution be dismissed, they may testify in behalf of the others.” (Code Crim. Proc., art. 731; Penal Code, art. 91.)
Where an accomplice, etc., is acquitted or the prosecution against him is dismissed after his principal has been tried and convicted, a new trial will be granted the latter to obtain the testimony of the former, where it appears that the new evidence is legal and competent, and material to his defense. Such testimony is called newly-discovered, though it is not such technically. (See the whole subject fully discussed and the authorities cited in Rucker v. The State, 7 Texas Ct. App., 549.)
In support of this ground of his motion appellant filed the affidavit of tiie witness Eolia (or Eavvley), and from his affidavit it appears that his testimony is competent,— admissible,— is corroborated *56by other testimony in the case,— is most important in its explanation of inculpatory facts against appellant; — in a word, is most material,— is not improbable as to its truth, and may affect the result of the case upon another trial. (The reporter will give the affidavits of the witness in the report of the case.)
[Opinion delivered December 9, 1885.]Because the court should have granted a new trial on account of this newly-discoveréd evidence, and erred in overruling it, the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.