Gillispie v. State

250 S.W. 681, 94 Tex. Crim. 241, 1923 Tex. Crim. App. LEXIS 104

Opinion

MORROW, Presiding Judge.

Appellant was charged in separate counts with the possession- of intoxicating liquor for the purpose of sale and of the unlawful transportation of such liquor.

Prom the bill of exceptions, it appears that preliminary to the trial, appellant, by motion duly presented, requested that he be furnished a copy of the indictment against him. This was refused on the theory that by his failure to demand it earlier, the appellant had waived his right to such copy. It is true that the right to make such demand may be waived either expressly or by conduct of the accused. Barrett v. State, 9 Texas Crim. App. 33; Rice v. State, 49 Texas Crim. Rep. 574; Keener v. State, 51 Texas Crim. Rep. 590; Scovill v. State, 77 S. W. Rep. 792; Revill v. State, 87 Texas Crim. Rep. 3. It is also true that the mere failure to make the demand at . a date earlier than the day of trial will not alone suffice to establish such waiver. The right to such copy is given by Article. 1, Sec. 10 of the Const., and by Article 553, C. C. P. We are unable to discern any reason in the instant case why the request should have been denied. It would have caused neither delay, expense nor- inconvenience to have complied with such request. Refusal to do so without sufficient excuse has often been held fatal to the conviction. Brewin v. State, 48 Texas Crim. Rep. 51; Revill v. State, 87 Texas Crim. Rep. 4; Venn v. State, 86 Texas Crim. Rep. 633; Mayes v. State, 87 Texas Crim. Rep. 512; Wray v. State, 89 Texas Crim. Rep. 632; Matheson v. State, 92 Texas Crim. Rep., 209, 241 S. W. Rep. 1014. The Assistant Attorney General concedes that because of this error the judgment must be reversed.

We note also that there are two counts in the indictment charging separate felonies. The jury found him guilty of both and he was adjudged guilty of both. He should have been adjudged guilty of but one offense. Banks v. State, 93 Texas Crim. Rep., 117, 246 S. W. Rep. 132; Knott v. State, 93 Texas Crim. Rep., 239, 245, 247 S. W. Rep. 520-522; Zilliox v. State, 93 Texas Crim. Rep. 301, 247 S. W. Rep. 523.

The judgment is reversed and the cause remanded.

Reversed and remanded.