Rucker v. State

Citations

• 7 Tex. Ct. App. 549

Syllabus

<p>1. Murder—Indictment may, in a single count and without duplicity, charge the accused with the murder of two or more persons by the same act. Note collocation of authorities in the opinion.</p> <p>2. Severance among defendants is possible only when two or more are jointly charged in the same indictment.</p> <p>3. Practice. — If several persons are separately indicted for the same offence, neither has a right to have another tried before himself. The act of March 16, 1874, enabled one defendant jointly indicted with another, on obtaining a severance, to have his co-defendant first tried, with the view of qualifying him as a witness bjr an acquittal; but this act had no application to persons separately indicted for the same offence.</p> <p>4. Same. — A motion to have a separately indicted confederate tried first is addressed to the discretion of the court, and its action on the motion is not revisable on appeal.</p> <p>5. Continuance. — Counter-affidavits are admissible to show that due diligence had not been used to enforce the attendance of the absent witness on whose account a continuance is asked, — as, for instance, that, though the witness had removed to another county, no attachment for him had been obtained.</p> <p>6. Evidence. — In a trial for murder the State was allowed, over the defendant’s objection, tó put in evidence an indictment against the defendant for an assault upon one W., and also an indictment against said W., and his bail-bond on which the deceased was a. surety. There was evidence of ill-will and threats of the defendant against the deceased on account of the latter thus befriending W. Held, in view of the other evidence, that the evidence objected to was admissible to show motive and identity.</p> <p>7. Hew Trial.—When there has been a severance of co-defendants, if one of them be convicted and afterwards the other be acquitted, the former will be allowed a new trial for the purpose of obtaining the testimony of the latter, provided it i