¶1PETITION TO REHEAR.
¶2The petition to rehear presents a question upon which the argument in support of it is plausible, that is to say, the right of the defendant to a new trial in order to have the benefit of the testimony of W. C. Porter. They* were jointly indicted. They applied for a severance, upon the ground so far as the present defendant is concerned, that he would want the benefit of Porter’s testimony, he being the only person who saw the beginning of the fatal recounter, and that he would prove facts material to Holcomb’s defense, _which he could not prove by any one else. The court refused the severance. It is settled that this is a matter. within the discretion of the judge: Robinson v. The State, 1 Lea, 673. And the court will not reverse the discretion of the trial judge, unless it appear that his discretion has been abused.
¶3As Porter has been acquitted, there can be no ground now to reverse the action of the court refusing a severance. They being jointly tried, Porter was not a competent witness, and was not offered, and in the trial, therefore, there was, in this respect, no error.
¶4*426But it is argued that the acquittal • of Porter-makes him a competent witness, and as the defendant has been, by the joint trial, deprived of Porter’s testimony, he ought to have a new trial to obtain the benefit of it. That by compelling him to submit to a joint trial with Porter, who has been adjudged not to have been guilty at all, he has been wrongfully deprived of testimony to which he was clearly entitled.
¶5To sustain this argument would result in requiring a severance in every case where it is applied for, or-a new trial, if one be convicted and the other acquitted, provided the one acquitted have any knowledge of the facts.
¶6Where there is no evidence to criminate one, .or he is indicted by mistake, or for the purpose of depriving the other of his testimony, the practice, it is said, is to direct his discharge so that he may be a witness for the other. Or where there is but little testimony as to the one, his case should first be submitted to the jury, and if found not guilty, he may be introduced for the other: 1 Arch., 476, and notes. We find no authority holding that the one convicted is. entitled to a new trial as a matter of right, in order to. have the benefit of the testimony of the one acquitted. In a proper case. the presiding judge might, no doubt, grant a new trial on this ground, but where the case is well made out, this court will not reverse, if he refuse.
¶7Petition dismissed.