The state has filed a motion for rehearing urging that our holding that Chavez was an accomplice witness be reconsidered. In Lowe v. State, 98 Tex.Crim. R., 267 S.W. 270 and Newton v. State, 94 Tex.Crim. R., 250 S.W. 1036, cited in our original opinion many authorities from our own court are referred to sustaining our present holding. The reasons therefor will appear in Grissman v. State, 93 Tex.Crim. R.,245 S.W. 438; Herring v. State, 42 S.W. 301; Oats v. State,48 Tex. Crim. 131, in all of which cases the same contention was made as is here urged, namely; that notwithstanding the witness had been indicted for the same offense as the accused, the evidence either showed that the witness was not an accomplice, or raised an issue of fact upon that question, and, therefore, that the indictment against him did not make him an accomplice as a matter of law. We see no reason for changing what has long been the recognized rule in this state; especially is this true in view of the statute which absolutely disqualifies as a witness for the accused one who is indicted for the same offense. (Art. 711, C. C. P.) The state may at its pleasure use such a witness against accused, but if the state elects not to do
so, the accused may not use him, but must resort to a severance unless the prosecution against the witness be dismissed by the state; in which latter event the fact of the former indictment together with the evidence in the case might make it an issue of fact whether the witness was an accomplice, but as long as the state holds against the witness an indictment for the same offense with which accused is charged, the witness, under our decisions, remains an accomplice as a matter of law.
The motion for rehearing is overruled.
Overruled.