Hawk v. State

Transporting intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for a period of one year.

From bill of exception No. 3 error is made to appear. On the calling of the case and before announcement of ready by either party, the county attorney suggested that the indictment had been lost. Attached to his motion to substitute there is what is described in the motion as a copy of the indictment. The appellant interposed objection to the motion upon the ground that he had received no notice of the intention to substitute.

By the bill of exception as qualified by the judge, it is shown that on the forenoon of the day upon which the trial took place and before announcement, the motion to substitute the indictment was filed while both the appellant and his attorney were present in the court-room and had actual knowledge that the motion was filed; that upon the hearing later the appellant's attorney was called as a witness and testified. Appellant contends that his rights are controlled by Articles 2289 and 2290, Rev. Civ. Stat., 1925, which allow three days' notice in advance of the hearing of the motion to substitute lost papers. In his view that he was entitled to notice before the filing of the motion to substitute the indictment, the appellant is correct. No precedent has come to our attention, however, which entitles him to any specific length of time. He refers to the opinion of this court in Hollingsworth v. State, 87 Tex.Crim. R., wherein it is said:

"It being a judicial act, it must be upon notice and the defendant has the right to contest the substitution if he sees proper to do so." Citing Bowers v. State, 45 Tex.Crim. R.; Carter v. State, 41 Tex.Crim. R.. In Bowers' case, supra, it was held that the court was in error in refusing to permit the appellant to contest the substitution. The fault was cured by giving the appellant a hearing upon the motion to quash the indictment. In Carter's case, supra, Judge Davidson, writing the opinion, said:

"The statute does not require, but we think the better practice would be to serve notice on defendant of the motion to substitute." A like announcement was made by this court in Burrage v. State, 44 S.W. 169, and again in Bennett v. State, 77 Tex.Crim. R.. In Art. 418, C. C. P., provision is made for the substitution of an indictment either by motion to substitute or by a new indictment. It is only when the latter course is pursued that the accused is entitled to a copy of the new indictment two days before the trial begins. See James v. State, 52 Tex.Crim. R.; also Vernon's Ann. Tex. C. C. P., 1925, Vol. 1, p. 337.

It appearing in the present instance that the appellant was given notice and opportunity to contest the substitution of the indictment and there being nothing in the record to indicate that he was in need of further time for that purpose, the contention presented by the appellant is deemed untenable.

A recital of the evidence is not deemed desirable. Suffice it to say that the proof was uncontroverted and is ample to support the verdict of the jury.

The complaint of the charge on the ground that the court instructed the jury that whisky was an intoxicating liquor is without merit.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.