Teiman v. State , 28 Tex. Ct. App. 144 ( 1889 )

White, Presiding Judge.

The appellant and Houston Taylor and Joe Norman were jointly indicted for arson.

At a former term of court the defendants, upon their own motion, were granted a severance, and Taylor was put upon his trial, but on account of a failure of the jury to agree a mistrial was had. At the next succeeding term Taylor made application, under article 669a of the Code of Criminal Procedure, for a continuance, until his co-defendants, Teiman and Norman, had been tried, in order that he might avail of their testimony when he should be put again upon trial. This motion was granted, and the case was continued as to Taylor. The affidavit of Taylor for said continuance recites: “And it is further agreed by all the defendants in this cause that Jim Teiman and Joe Norman be first put upon trial.'” When the case was called as to Teiman and Norman they asked for a severance; but the court, holding that because this recital or agreement in Taylor’s motion for continuance (though the motion was only signed by Taylor), and because all the defendants had, throughout, been represented by the same counsel, was binding upon Teiman and Norman, refused to grant the severance.

We are of opinion that not having signed said agreement, these parties were not bound by it; and that even if bound, the language used is not limited to the construction that the parties intended to bind themselves that they should be tried together. Nor does the fact that they were all represented by the same counsel, in our opinion, render such construction conclusive.

Under the law as it now is, defendants jointly indicted and prosecuted have not only the right to sever, but they have the right, by agreement, to indicate and fix the order in which they are to be tried. Code Crim. Proc., arts. 669, 670. Such severance is a matter of right. Willey v. The State, 22 Texas Ct. App., 408.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Hurt, J., absent.