Opinion
No. 12683.
Delivered November 6, 1929.
1. — Practice — Waiver of Service of Copy of Indictment.
Waiver of service of copy of indictment in criminal prosecution cam be made only by accused himself.
2. — Practice — Two Days Allowed After Service for Filing Pleadings.
Appellant who was in custody at time of service of copy of indictment upon him was entitled to such service under Code Cr. Proc. 1925, art. 515, providing that appellant entitled to service of indictment shall be allowed two days after service to file written pleadings.
3. — Service of Copy of Indictment — Not waived by Statements or Conduct of Attorney in Appellant's Presence.
Right of appellant served with copy of indictment two days after service within which to file written pleadings under Code Cr. Proc. 1925, art. 515, was not waived by statements or conduct of appellant's attorney in courtroom, though in presence of appellant where there was no showing of conscious assent thereto on the part of appellant himself.
Appeal from Criminal District Court of Harris County. Tried below before the Hon. Whit Boyd, Judge.
Appeal from a conviction for burglary with intent to murder, penalty three years in the penitentiary.
The opinion states the case.
Mathis, Teague Mathis of Houston, for appellant.
O'Brien Stevens, Criminal District Attorney of Houston, and A. A. Dawson of Canton, State's Attorney, for the State.
Conviction for burglary with intent to murder; punishment three years in the penitentiary.
Examination of this record leads us to conclude that we are under the necessity of reversing the case for failure to accord to the accused a right guaranteed him by our statutes. There is but one bill of exceptions which complains of the refusal of two days' time after service of a copy of the indictment. There is a lengthy qualification to the bill which brings into this record many pages of extended and apparently heated examination of witnesses, including attorneys and also the judge of the trial court, the point in which seems to have been to prove a waiver of said two days' time by appellant's attorney, possibly in the presence of appellant. The weight of evidence seems to support the finding of the court as set out in his qualification to said bill to the extent of establishing such waiver, but the proof seems wholly lacking of the fact that appellant himself waived said time. His presence in the court room when such waiver was made by his counsel may be conceded, but the record must go further and show some conscious assent on the part of appellant in person. Beginning with the early opinions of this court down to now, we have always held that the accused himself must make waiver of service of a copy of the indictment. McDuff v. State, 4 Texas Crim. App. 58; Lightfoot v. State, 77 S.W. Rep. 793; Venn v. State, 86 Tex.Crim. Rep.; Buckley v. State, 108 Tex. Crim. 60. No question is made of the fact that appellant was in custody at the time he was served with a copy of the indictment on January 29th. That he was entitled to such service is clear. Art. 515 C. C. P. plainly states that if entitled to such service the accused shall be allowed two days after service to file written pleadings. Woodall v. State, 25 Texas Crim. App. 617; Evans v. State, 36 Tex.Crim. Rep.; Whitesides v. State, 44 Tex.Crim. Rep.; Buckley v. State, 108 Tex.Crim. Rep.. There is no dispute of the fact that he was not given the two days sought, after service of a copy of the indictment. For the error of the refusal of same, the judgment will be reversed and the cause remanded.
Reversed and remanded.