Hawk v. State

Appellant urges the single proposition that we erred in upholding the action of the trial court in allowing the State to substitute the indictment herein in manner and form as appears in the record. It is uncontroverted in the record that the State filed a written motion suggesting to the court below that the indictment in this case had been lost, asking leave to substitute the same, accompanying the motion by a copy of said lost indictment. It is apparent from the record that appellant and his attorney were present in court and knew of the filing of this motion. As stated in the original opinion, appellant's attorney testified that he had made a search for the indictment at different times without success. The county attorney testified that he had searched for the indictment without success, as did also the district clerk. The record further shows that upon this testimony the court entered an order reciting the motion of the State, and that the matter had been heard by the court, and ordering the substitution of said indictment, which order was directed to be entered in the minutes.

Appellant's objection seems to be that he was not given some formal notice of the filing of the motion to substitute, and that he was not given some period of time after such notice and before the matter was heard by the court. It is settled in this State that one accused of crime can waive anything in connection with the proceedings in his case save a trial by jury in a felony case. If appellant in this case, or anyone for him, objected to the hearing by the court of the motion to substitute upon the ground that no written notice had been given him, or upon the further ground that there were matters material to the decision of the court upon the State's motion to substitute, which could be ascertained or shown by the granting of further time to the accused prior to such hearing, we fail to find it in the record. In James v. State,52 Tex. Crim. 21, we held it not necessary to grant the accused two days after the substitution of an indictment in which to get ready for trial. We are cited to no authorities by appellant which sustain his contention in any regard. Hollingsworth v. State, 221 S.W. Rep. 979, is referred to and discussed in appellant's motion. As we understand said opinion, it holds, first, that the record must show the loss and substitution, which latter is a judicial act and must be of record. The record in this case complies with this requirement. Strong v. State, 18 Texas Crim. App. 19. Said case also holds that the substituted document must be substantially a reproduction of the lost original. This fully appears. It further holds that such substitution must be upon notice so that the defendant may have the right to contest the substitution if he sees proper to do so. We are not in accord with appellant's contention that he did not have notice of the State's purpose to substitute, and of the proceeding by which the substitution was made. This court earnestly and jealously endeavors to give to the accused every substantial right guaranteed him by the law and the Constitution, but must decline to reverse a case upon the assertion of a fancied injury in no way shown to have substance or reality. Appellant was represented by able and experienced counsel, and both appellant and said counsel had notice and knowledge of the substitution proceeding.

We are unable to agree with any contention made, and the motion for rehearing is overruled.

Overruled.