Majors v. State ( 1925 )

Appellant cites Simonds v. State, 175 S.W. Rep. 1064 and Espinoza v. State, 165 S.W. Rep. 208, as being opposed to the announcement in our original opinion that his codefendant Biano, who had been convicted for complicity in the same offense and given a suspended sentence, was not a competent witness in his behalf. We fear appellant has not apprehended the distinction between the cases cited in our opinion and those just referred to. We did not uphold the rejection of Biano's testimony on the ground that one under a suspended sentence is thereby rendered incompetent as a witness generally. The question was not before us. In Espinoza v. State, supra, the testimony of a witness who had been convicted and given a suspended sentence was held properly admitted, when offered for the State. Had the witness been offered for the accused, under circumstances similar to those in this case, his testimony should have been rejected. The ruling is in response to Art. 791, C. C. P., which forbids those indicated for the same offense to be used as witnesses for each other. One who has been convicted and given a suspended sentence, still has the indictment pending against him until after the expiration of the sentence, when upon proper showing a new trial is granted and the case dismissed. We have examined each of the other contentions made by appellant and believe them without merit.

The motion for rehearing is overruled.

Overruled.