Sinclair v. State

ON appellant’s motion for rehearing.

DAVIDSON, Judge.

Appellants renew their insistence that the so-called new statute (Art. 642c, Vernon’s P. C.) is ex post facto as to them, and therefore is not applicable to or controlling in the instant trial. Especial emphasis is placed upon the contention that the right to a separate trial by the use of the severance statute has been destroyed by the new act, which was such as to injuriously change appellants’ fundamental rights and therefore could not be and was not procedural.

The right preserved and guaranteed by the severance statute was to furnish to an accused the means by which he could make available the testimony of co-defendants and co-indictees. The *43 separate trial thereby accorded was a necessary incident to the fulfillment of that right, because of the statute prohibiting coindictees from testifying for one another. Art. 711, C. C. P. The new statute accorded to appellants the right which the severance statute preserved to them, for, by its express terms, provision was made whereby codefendants or co-indictees could testify as witnesses one for the other.

It is apparent, therefore, that the right conferred by the severance statute was expressly preserved to appellants under the new statute.

Appellants insist that the new statute is ex post facto as to them because it alters and allows a conviction upon the uncorroborated testimony of an accomplice and provides for compulsory testimony of co-defendants.

We disposed of this contention, originally, upon the proposition that the new statute made no changes in the particulars pointed out and that both remedies were existent and controlling under the statute existing at the time the offense was alleged to have been committed.

The remaining contentions presented in the motion were all disposed of under our original holding. It would serve no useful purpose to again state our conclusions relative thereto.

The motion for rehearing is overruled.

Opinion approved by the court.