The homicide took place on April 19th. The appellant and his two sons were arrested at once. At the examining trial the two sons were placed under bond in the amount of $1,000.00. The court convened on May 7th. The appellant was indicted for murder on May 15th. The trial began on May 28th. The State closed its testimony on May 30th, and the testimony on behalf of the appellant began on the morning of June 1st. At the time of his announcement of ready for trial, and at the time the State closed its testimony, no indictment had been presented against either of the appellant's sons. When they were offered as witnesses in behalf of the appellant on the morning of June 1st, their testimony was rejected by the court upon the initiative of the State by reason of the fact that they had been indicted for the offense of murder.
From Bill of Exceptions No. 8, it appears that the only eyewitnesses to the killing of Willard were the State's witnesses, Hancock and Anderson, and the appellant's two sons. Both Hancock and Anderson testified that neither of the boys shot nor made any effort to shoot and that the only thing they did was to run. Neither the officers nor any other witness testified that either of the boys was connected with the killing of Willard. The appellant's bill of exceptions would have been more complete if it had been made to appear that the appellant sought by proper motion to withdraw his announcement of ready for trial when it was ascertained that his sons, who would give testimony in his favor, had been disqualified as witnesses by the indictment against them under the circumstances detailed. Obviously, under Art. 551, C. C. P., 1925, he would have had a right to withdraw or continue the case because of the "unexpected occurrence," and through other statutes would have had a right to have demanded a severance to the end that his sons (against whom, as it appears from the bill of exceptions, there was no evidence of guilt of the homicide) might be freed from the disability of the pending indictments and become witnesses in the appellant's favor. When, from circumstances brought about by the conduct of his adversaries one is deceived as to the presence of witnesses against him or in his favor when he announces ready for trial, he is entitled *Page 115 to relief upon proper demand. This rule was announced by the Supreme Court of this State in March v. State, 44 Tex. Rep. 64, and has been reaffirmed and applied in many subsequent cases. Among them are Lindley v. State, 11 Tex.Crim. App. 283; Hendrick v. State, 47 Tex.Crim. Rep.; Eldridge v. State, 12 Tex.Crim. App. 208; Hodde v. State, 8 Tex.Crim. App. 383. See also Ency. of Pleading Practice Vol 4, p. 863, par. 15; Vernon's Tex. Ann. P. C., 1925, Vol. 1, p. 472.
The remarks made in the original opinion concerning the charge of the court correctly state the views of this court touching the law applicable to the facts. Additional discussion of the matter is not deemed necessary. These remarks are made in the light of the motion for rehearing filed by the State, supported by the oral argument of State's counsel.
The motion for rehearing by the state is overruled.
Overruled.