Appellant was prosecuted under complaint and information for the offense of unlawful assembly, which is defined in our statute, article 435, P.C., as follows: "An `unlawful assembly' is the meeting of three or more persons with intent to aid each other by violence, or in any other manner either to commit an offense, or illegally to deprive any person of any right, or to disturb him in the enjoyment thereof." There were several counts in the information charging this offense, and in the same information appellant was charged with riot as defined in article 451, P.C. His conviction was for unlawful assembly, and his punishment fixed at a fine of $100. *Page 148
In the motion to quash the information it is attacked in a number of grounds. Without reviewing the details, we think that the elements of the offense of unlawful assembly were sufficiently set out in the pleading. The reported decisions of this court with reference to this character of prosecution are listed in 39 Cyc., 832, note 4. It is claimed that there was vice in the pleading in that the offense of riot and that of unlawful assembly were charged in the same proceeding. Both were misdemeanors and were chargeable in the same complaint and same information. Alexander v. State, 27 Texas Crim. App., 532; Warner v. State, 66 Tex.Crim. Rep., 147 S.W. Rep., 265; McKinney v. State, 68 S.W. Rep., 176; Vernon's C.C.P., p. 243.
There was no error in refusing to require the State to elect as between the offense charged in the several counts. Gould v. State, 66 Tex.Crim. Rep., 147 S.W. Rep., 247; Tucker v. State, 65 Tex.Crim. Rep., 145 S.W. Rep., 611; Sweeney v. State, 59 Tex.Crim. Rep.; Bivens v. State, 97 S.W. Rep., 86; Thompson v. State, 32 Tex.Crim. Rep.; Brown v. State, 38 Tex.Crim. Rep.; Woodward v. State, 58 Tex. Crim. 411; Vernon's C.C.P., p. 247.
It was alleged in the information that in committing the offense charged appellant acted with a number of other persons named in the pleading. Appellant made a timely motion for a severance and for separate trials, to which motion he attached the separate informations against several co-principals. Article 791, P.C., makes those who were charged with the same offense growing out of the same transaction incompetent witnesses for appellant. And article 791, supra, and article 91, P.C., provide that where so indicted they may claim a severance, and if any one or more be acquitted, they may testify in behalf of the others. Article 727, C.C.P., provides the procedure for obtaining severance. Appellant's motion was in full compliance with the article last named, averring under oath that the evidence of his codefendants charged by separate information would be material to his defense, and that he verily believed there was not sufficient evidence against them to secure a conviction. The order of trial was suggested in the affidavit, and no opposition filed to it so far as disclosed by the record. There is no reason assigned, so far as the record before us discloses, for the refusal to grant the motion to sever. The appellant having complied with the statute in making his application for a severance, to which the statute entitled him, the trial court was without discretion to overrule it without sufficient reasons, which should be shown in the record. Branch's Ann. P.C., pp. 375-376, and cases cited.
Because of the refusal of the court to grant the order of severance, the judgment of the lower court is reversed and the cause remanded.
Reversed and remanded. *Page 149