De Pombo v. State

Appellant insists that the Constitution of this state and its laws guarantee to him the service of a correct copy of the indictment returned against him, under certain conditions, and that the failure of the State to comply with this mandate of the law demands a reversal of the case, whether such failure was taken advantage of at the proper time or not. He cites Reville v. State, 218 S.W. Rep. 1044, and Venn v. State, 218 S.W. Rep. 1060, and other authorities. In Reville's case we merely affirmed the proposition that the court's refusal to have a copy of the indictment served upon the accused before putting him to trial, after he had requested same, was cause for reversal. Substantially the same proposition is in Venn v. State, supra. In the latter case we said that such service can in no way be dispensed with if the accused makes the demand. "It is a constitutionally guaranteed right upon which he can insist. That he may waive his right in this matter does not occur when he makes the demand, but if he makes a waiver it must be by himself." None of the authorities go to the extent of holding that where the accused has been served with a copy of the indictment in some way at variance with the indictment itself, and no demand or request is made for service of a correct copy before the trial begins, this would be cause for a new trial or reversal. In the instant case it is admitted that appellant had been served with a copy of the indictment before the trial. It is now insisted that after the trial had begun appellant discovered that the copy served upon him was at variance with the indictment and that when he discovered this, he objected to proceeding any further with the case. No authority known to us holds such procedure as above indicated would justify the trial court in stopping the trial or granting a new trial. We do not think same calls for a reversal of the case on our part.

The motion for rehearing will be overruled.

Overruled.