Barbee v. State , 32 Tex. Crim. 170 ( 1893 )

DAVIDSON, Judge.

When the parties announced ready for trial, the defendant was arraigned, and pleaded not guilty. The jury was then empanelled, and the evidence introduced. At this stage of the proceedings the district attorney was permitted to read the indictment to the jury, 'which, through inadvertence, had not been previously done. Defendant objected, and refused to plead, whereupon the plea of not guilty was entered by the court. The district attorney then offered to reintroduce the evidence, to which defendant objected, upon the ground that it had already been placed before the court and jury. The court held this to be a waiver of the reintroduction of the testimonj, and sustained the objection. We are of opinion the ruling was correct. In the absence of such waiver, it was incumbent upon the prosecution to again adduce the evidence on the part of the State, but this became unnecessary when the stated objection was interposed. All the testimony of defendant and the State had been already placed before the jury, and, but for his suggestion, would have again been gone over. Under the circumstances, its reintroduction would have been more of a formality than otherwise, and was, we think, waived by defendant. The rearraignment and plea thereto was regular, and in conformity with the statute. Code Crim. Proc., arts. 509, 516; Willson’s Crim. Stats., secs. 2108-2110; 1 Bish. Crim. Proc., sec. 733.

While, under the terms of the Code of Criminal Procedure, article 660, it is mandatory that the indictment be read to the jury before the evidence is offered, and while it may be true the conviction would be illegal should this not be done, it would nevertheless be proper, upon discovery of this omission, to read such indictment to the jury, and reintroduce the testimony; and it is an equalty correct-proposition, that the accused could waive both the reading of the indictment and the reintroduction of the evidence. We are of opinion that the ruling of the court in the matter complained of was hot erroneous. We are of opinion that the court did not err in the matters complained of in relation to the charges given and refused. The judgment is affirmed.

Affirmed.

Judges all present and concurring.