Herd v. State

The state takes the position under authority of Griffith v. State, 138 S.W. 1016, Coffey v. State, 198 S.W. 326 and Oneal v. State, 146 S.W. 938, that the postponement granted on the 27th day of January to the 13th day of February should be regarded as a continuance, and that having been granted at appellant's request it should be held a waiver of his right to demand a copy of the indictment. Attention is called to the fact that in each of the three cases mentioned the application by appellant was for a "continuance" which was denied, but a postponement granted instead. When later another application for continuance was presented it was held to be subject to the requirements of a subsequent application. See also Brannan v. State,1 S.W.2d 279; and Davis v. State, 10 S.W.2d 116. We think the holding in Hutto v. State, 98 Tex.Crim. R., 266 S.W. 514 that the facts shown to be present in that case and those supporting it amounted to a waiver cannot properly be extended to embrace the present case. Here an order had been made setting the case down for trial on January 27th at which time appellant appeared and notified the trial judge that his attorney could not be present because engaged in the trial of a case in another county. It is true appellant had another attorney with him at the time but apparently only to secure the postponement until his regular attorney could be present. Under the circumstances the case was passed until the 13th day of February, at which time appellant's attorney was present and immediately demanded a copy of the indictment. We think it would be doing violence to Art. 1, Sec. 10 of the Constitution and to Art. 489 Cow. C. P. to hold that the incident of January 27th amounted to a waiver by appellant of his right to have a copy of the indictment.

The state's motion for rehearing is overruled.

Overruled.