Wright v. State , 109 Tex. Crim. 164 ( 1928 )

Appellant insists that one feature presented by bill of exception No. 1 was not discussed in the ment served upon him was not a "certified" copy. Appellant was confined in jail. The Constitution (Sec. 10, Art. 1), guarantees that accused "shall have the right to demand the nature original opinion, viz.: his complaint that the copy of the indictand cause of the accusation against him, and to have a copythereof." In order that the demand of the Constitution be met, Art. 487 Cow. C. P. provides that if accused be in custody a "certified" copy of the indictment shall be served upon him. There appears in the bill of exception the original indictment and the copy thereof which was in fact served upon appellant. The one delivered to him was a literal copy of the original indictment, which contained six counts, and the copy advised him with the utmost particularity of the "nature and cause of the accusation against him," but the clerk omitted to fill out and sign the blank form certifying that it was a true copy. It is on this omission that appellant's contention on rehearing is predicated. In speaking of the statute regarding copies of indictments it is said in Keener v. State, 51 Tex. Crim. 590 :

"Let it be conceded that this statute is mandatory in terms, still it must receive a reasonable construction so as to protect appellant's right, while at the same time not obstructing or delaying trials."

The language in Redford v. State, 98 Tex.Crim. Rep.,262 S.W. 766, is:

"The purpose of these provisions is to guard against bringing one to trial in ignorance of the charges against him without opportunity to prepare his defense."

From Wray v. State, 89 Tex.Crim. Rep., 232 S.W. 808, we quote:

"We are of the opinion that both the spirit and purpose of the law is complied with when it is shown that a substantial copy of the indictment is in possession of the appellant a sufficient length of time before his case is called for trial to enable him to properly prepare his defense, and that a literal compliance with and direction that such copy of the indictment be served upon him by the sheriff is not necessary."

Similar language in Wimberly v. State, 95 Tex. Crim. 102,252 S.W. 787, is:

"The object of service of a copy of the indictment upon the accused is to apprise him, he being presumed innocent, of the charge against him, so that he may have notice in time of what he must prepare to meet and of the exact offense charged."

Luster v. State, 63 Tex.Crim. Rep., is direct authority against appellant's position and in principle has been followed in Stovall v. State, 95 Tex.Crim. Rep., 253 S.W. 526, and in Adams v. State, 95 Tex.Crim. Rep., 252 S.W. 797. An examination of the cases cited will furnish reference to many other authorities. The copy of the indictment actually delivered to appellant furnished him with all the information guaranteed him under the Constitution, and he would have been in no better position to have prepared a defense had the clerk certified many times over that the copy was correct. When the irregularity was called to the attention of the learned trial judge, an investigation of the matter became necessary and if any material variance was discoverable between the copy served and the original indictment a postponement would have been demanded until the statutory and constitutional provisions could have been substantially complied with. Doubtless such would have been the course pursued in the present instance had any such variance appeared.

The motion for rehearing is overruled.

Overruled.