Willson, Judgk.
It appears from the record that the indictment was read to the jury on the trial, the defendant having entered a plea of not guilty thereto. When the jury returned their verdict into court the indictment was missing. It was [265]*265shown by the affidavits of the clerk of the court and of the prosecuting attorney that, when the jury retired to consider of their verdict, the indictment was handed by the clerk to the foreman of the jury. It was, on the other hand, shown by the affidavits of the foreman and two other members of the jury that the indictment was n'ot before the jury when the case was being considered by them, nor when they made up their verdict. The verdict was written upon a bail bond, which was a paper in the cause.
When the loss of the irfdictment was ascertained, the district attorney suggested its loss to the court and moved to substitute it, which motion was granted, and the indictment was substituted. A motion in arrest of judgment was made.by the defendant, and overruled by the court; which motion was based upon the ground that there was no indictment before the jury, or in court, at the time the verdict was made and returned into court. The court then proceeded to enter judgment upon the verdict, and after motion for new trial made and overruled, and after the court had pronounced the sentence upon the defendant, he appealed to this court.
It is argued by defendant’s counsel that Article 434 of the Code of Criminal Procedure, providing for the substitution of an indictment, is violative of the Fourteenth Amendment to the Constitution of the United States, and also of Article 1, section 10, of our Bill of Rights. This Article of our Code was not contained in the original Code, but was engrafted thereupon by amendment, by act of February 15, 1858. Prior to the adoption of the original Code, we had a statute, however, which provided for the substitution of a lost indictment, though it was not so full and explicit in prescribing the manner and requisites of such substitution as is Article 434, before cited, and did not permit the substitution to be made except by the grand jury. (Hartley’s Digest, Art. 464; The State v. Elliott, 14 Texas, 423.) But in The State v. Adams, 17 Texas, 232, it was held that an indictment might be substituted under the statute providing for the substitution of lost records in civil cases. (Pas. Dig., Arts. 4969, 4970.) That was a case where the indictment was for a misdemeanor, and no question was raised as to the constitutionality of the law with reference to indictments. In The State v. Ivy, 33 Texas, 646, which was also a prosecution for a misdemeanor, it was held that it was proper to substitute an indictment, and that the substitution need not be made by the grand [266]*266jury presenting another indictment, but might be made by the district attorney. There was no question raised in Ivy’s case as to the constitutionality of the statute.
We have examined all the cases decided in our own State wherein the question of substitution or attempted substitution of the indictment has been before the court, and in none of them do we find the question of the constitutionality of this statute, in so far as it allows the substitution otherwise than by the act of the grand jury, presented or discussed. (Turner v. The State, 7 Texas Ct. App., 596; Beardall v. The State, 9 Texas Ct. App., 262; Rogers v. The State, 11 Texas Ct. App., 608.) It is therefore an open question in this State, and, in the opinion of the writer, is by no means free from difficulty.
By section 10 of our Bill of Rights, no person shall be held to answer for a criminal offense which is a felony, unless on indictment of a grand jury. Is a paper which has been substituted for the indictment by the act of the district or county attorney, in the manner provided by the statute, an indictment of a grand jury? If it is not, then is it within the power of the Legislature to provide that any person shall be held to answer for a felony upon it? But we are not called upon by the facts in this case to determine the question as to the constitutionality of the statute referred t.o, and we have adverted to it mainly for the purpose of calling the attention of prosecuting attorneys to the subject, and suggesting to them that it is much the safer and better practice, wherever it can be done, to substitute a lost indictment by having another one returned by the grand jury; which was the common law practice, and is the only mode of supplying a lost indictment in most of the States. (1 Bish. Crim. Proc., sec. 1400.)
In the case before uS, the defendant was called upon to answer the original indictment, which was the act of the grand jury, and he pleaded to it as such, thereby admitting its genuineness. He was put upon his trial, therefore, “on indictment of a grand jury,” in compliance with the requirement of our Bill of Rights, and upon “due process of law,” as required by section 1 of the Fourteenth Amendment to the Constitution of the United States. It was not until after the defendant had pleaded to the indictment that it was lost and substituted. This being the case, the constitutional questions raised by defendant’s counsel are not properly in the case. We find these questions ably discussed in two Alabama cases, where the difference between the [267]*267substitution of a lost indictment before trial, and its substitution after plea to the merits, is clearly pointed out.
In the first case, Ganaway v. The State, 22 Alabama, 772, an indictment was substituted before trial, by a proved copy thereof. The court said: “ The question here is, can an indictment be substituted before trial. * * * * The power of substitution is claimed as a power inherent in every court to supply such papers, or parts of the record, as may have been lost by accident or destroyed, which constitute a necessary part of the proceedings. * * * But this power does not embrace an indictment. The court has no power to make an indictment, or to direct one to be made. That power resides exclusively with the grand jury. * * * In the matter of preferring an indictment the grand jury are the sole judges, under their oath, of the propriety of their own action. * * * The right is conceded to the prisoner to he arraigned on the indictment found by the grand jury;.to have an inspection of that identical paper, in order to make his objections to its form or substance, if any exist. The rule is one which tends to make solicitors careful in drawing indictments, with reference to the question we are discussing, and clerks extremely careful of their safe custody. We doubt whether, on the whole, any good would be accomplished by overthrowing a rule which is productive of these consequences. When an indictment is lost or destroyed, it can generally be supplied by hawing a new one found by the grand jury.” Accordingly, the court in that case held that the indictment could not be substituted.
In Bradford v. The State, 54 Alabama, 230, the indictment was lost after the trial had commenced, and after tin- defendant’s plea of not guilty thereto had been entered, and upon discovering the loss of the indictment it was substituted, pending the trial of the case. Bradford’s case being a parallel case to the one before us, with reference to the question we are discussing, we shall extract from the able opinion of Chief Justice Brickell at length.
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Willson, Judgk.
It appears from the record that the indictment was read to the jury on the trial, the defendant having entered a plea of not guilty thereto. When the jury returned their verdict into court the indictment was missing. It was [265]*265shown by the affidavits of the clerk of the court and of the prosecuting attorney that, when the jury retired to consider of their verdict, the indictment was handed by the clerk to the foreman of the jury. It was, on the other hand, shown by the affidavits of the foreman and two other members of the jury that the indictment was n'ot before the jury when the case was being considered by them, nor when they made up their verdict. The verdict was written upon a bail bond, which was a paper in the cause.
When the loss of the irfdictment was ascertained, the district attorney suggested its loss to the court and moved to substitute it, which motion was granted, and the indictment was substituted. A motion in arrest of judgment was made.by the defendant, and overruled by the court; which motion was based upon the ground that there was no indictment before the jury, or in court, at the time the verdict was made and returned into court. The court then proceeded to enter judgment upon the verdict, and after motion for new trial made and overruled, and after the court had pronounced the sentence upon the defendant, he appealed to this court.
It is argued by defendant’s counsel that Article 434 of the Code of Criminal Procedure, providing for the substitution of an indictment, is violative of the Fourteenth Amendment to the Constitution of the United States, and also of Article 1, section 10, of our Bill of Rights. This Article of our Code was not contained in the original Code, but was engrafted thereupon by amendment, by act of February 15, 1858. Prior to the adoption of the original Code, we had a statute, however, which provided for the substitution of a lost indictment, though it was not so full and explicit in prescribing the manner and requisites of such substitution as is Article 434, before cited, and did not permit the substitution to be made except by the grand jury. (Hartley’s Digest, Art. 464; The State v. Elliott, 14 Texas, 423.) But in The State v. Adams, 17 Texas, 232, it was held that an indictment might be substituted under the statute providing for the substitution of lost records in civil cases. (Pas. Dig., Arts. 4969, 4970.) That was a case where the indictment was for a misdemeanor, and no question was raised as to the constitutionality of the law with reference to indictments. In The State v. Ivy, 33 Texas, 646, which was also a prosecution for a misdemeanor, it was held that it was proper to substitute an indictment, and that the substitution need not be made by the grand [266]*266jury presenting another indictment, but might be made by the district attorney. There was no question raised in Ivy’s case as to the constitutionality of the statute.
We have examined all the cases decided in our own State wherein the question of substitution or attempted substitution of the indictment has been before the court, and in none of them do we find the question of the constitutionality of this statute, in so far as it allows the substitution otherwise than by the act of the grand jury, presented or discussed. (Turner v. The State, 7 Texas Ct. App., 596; Beardall v. The State, 9 Texas Ct. App., 262; Rogers v. The State, 11 Texas Ct. App., 608.) It is therefore an open question in this State, and, in the opinion of the writer, is by no means free from difficulty.
By section 10 of our Bill of Rights, no person shall be held to answer for a criminal offense which is a felony, unless on indictment of a grand jury. Is a paper which has been substituted for the indictment by the act of the district or county attorney, in the manner provided by the statute, an indictment of a grand jury? If it is not, then is it within the power of the Legislature to provide that any person shall be held to answer for a felony upon it? But we are not called upon by the facts in this case to determine the question as to the constitutionality of the statute referred t.o, and we have adverted to it mainly for the purpose of calling the attention of prosecuting attorneys to the subject, and suggesting to them that it is much the safer and better practice, wherever it can be done, to substitute a lost indictment by having another one returned by the grand jury; which was the common law practice, and is the only mode of supplying a lost indictment in most of the States. (1 Bish. Crim. Proc., sec. 1400.)
In the case before uS, the defendant was called upon to answer the original indictment, which was the act of the grand jury, and he pleaded to it as such, thereby admitting its genuineness. He was put upon his trial, therefore, “on indictment of a grand jury,” in compliance with the requirement of our Bill of Rights, and upon “due process of law,” as required by section 1 of the Fourteenth Amendment to the Constitution of the United States. It was not until after the defendant had pleaded to the indictment that it was lost and substituted. This being the case, the constitutional questions raised by defendant’s counsel are not properly in the case. We find these questions ably discussed in two Alabama cases, where the difference between the [267]*267substitution of a lost indictment before trial, and its substitution after plea to the merits, is clearly pointed out.
In the first case, Ganaway v. The State, 22 Alabama, 772, an indictment was substituted before trial, by a proved copy thereof. The court said: “ The question here is, can an indictment be substituted before trial. * * * * The power of substitution is claimed as a power inherent in every court to supply such papers, or parts of the record, as may have been lost by accident or destroyed, which constitute a necessary part of the proceedings. * * * But this power does not embrace an indictment. The court has no power to make an indictment, or to direct one to be made. That power resides exclusively with the grand jury. * * * In the matter of preferring an indictment the grand jury are the sole judges, under their oath, of the propriety of their own action. * * * The right is conceded to the prisoner to he arraigned on the indictment found by the grand jury;.to have an inspection of that identical paper, in order to make his objections to its form or substance, if any exist. The rule is one which tends to make solicitors careful in drawing indictments, with reference to the question we are discussing, and clerks extremely careful of their safe custody. We doubt whether, on the whole, any good would be accomplished by overthrowing a rule which is productive of these consequences. When an indictment is lost or destroyed, it can generally be supplied by hawing a new one found by the grand jury.” Accordingly, the court in that case held that the indictment could not be substituted.
In Bradford v. The State, 54 Alabama, 230, the indictment was lost after the trial had commenced, and after tin- defendant’s plea of not guilty thereto had been entered, and upon discovering the loss of the indictment it was substituted, pending the trial of the case. Bradford’s case being a parallel case to the one before us, with reference to the question we are discussing, we shall extract from the able opinion of Chief Justice Brickell at length. The opinion says: “Courts of record, independent of express legislation, have power to substitute any of the files or records which may be lost or destroyed. The power is matter of necessity, whether the loss occurs while the cause is in fieri, before it has progressed to final judgment, or after such judgment has been rendered, and whether the loss is of the whole record, or of papers which, when it is finally made up, will constitute a part of it. In reference to civil cases, the [268]*268statute now provides, ‘if an original pleading be lost, or withheld by any person, the court may order a copy to be filed in place of the original.’
“In Ganaway v. The State, 22 Alabama, 772, the majority of the court, recognizing this power of the court in civil cases, denied the power to substitute an indictment before arraignment and trial. Since the statutes provide that if an indictment is lost, mislaid or destroyed, the court may, on satisfactory proof thereof, order another indictment to be preferred. And further provides the time elapsing between the finding of the first and the subsequent indictment shall not be computed as part of the time limiting the prosecution of the offense. Neither the decision in Ganaway’s case nor the statute meets the question now presented—the loss of an indictment, the verity of which was indisputable. The opportunity of inspecting it had been .afforded, and, availing himself of the opportunity, he tested by demurrer its sufficiency. The demurrer being overruled, the plea of not guilty—he declining to plead—was entered for him before the loss of the indictment. There can be no apprehension that an indictment against him had not been prefemd by the grand jury, or that he was put on his trial to answer the genuine finding of the grand jury. The indictment having been lost after plea, after the jury had been impaneled and the evidence closed, the result is, the prisoner was entitled to his discharge, if the continuous existence and presence in court of the indictment was essential, and the court could not by substitution supply its loss *********
“Without infringing on the decision in Ganaway’s case, or invoking the aid of the statute, as matter of legal principle, jealous of the safety of the accused, and preservation of all the rights guaranteed to him, we cannot apprehend there is any real difficulty in affirming the po wer of the court to permit, or indeed to compel, the substitution of the indictment, under the facts found in the record, with or without the consent of the accused. The indictment, under our laws, is an indispensable constituent of the record. To answer it the defendant is arraigned, and to it his plea is the answer, whether he voluntarily interposes it, or the court, when he stands mute, intervenes for him. Before he can be arraigned and put on his trial the record must disclose an indictment, that it is the finding of a grand jury, organized in the mode prescribed by law, and by them returned into and accepted by the court. * * * When [269]*269pleaded to, either by the plea of not guilty, or by general demurrer because of its insufficiency in law, its genuineness as a record stands admitted. Neither plea would be proper, or authorize the rendition of judgment, unless interposed to a genuine indictment. *******
“ Of the existence of the original indictment, and of its verity, there could be and was no controversy. The substitution was the introduction into the record of matter previously recognized by the court, and admitted by the defendant, of matter, the verity of which had previously passed beyond controversy. It was the duty of the court to make the record speak the truth; to conform it to the facts as they existed when the defendant was arraigned, pleaded, and was put on his trial; thereby no right of the accused was imperiled; he is not subjected to any other jeopard} than that in which he was placed when put on his trial. That the grand jury had made a presentation against him; that it was returned into court; that he had admitted its verity, was already judicially ascertained, and was apparent of record. His clear, constitutional right was to a verdict from the jury impaneled and sworn, which he had accepted as his triers. The loss or destruction of the indictment could not take away this right. The State had a corresponding right that the trial should progress, and a judgment of conviction or acquittal be rendered, finally determining the prosecution. Such rights cannot be impaired or destroyed by the accidental loss or the wilful abstraction or destruction of papers pending the trial. The substitution of such papers on satisfactory proof, by the court, is the only mode of supplying the loss, and lies within the inherent power of the court. Otherwise the progress of a cause could be arrested; the escape of the criminal could be secured by the felonious abstraction, or the accidental loss of the indictment. In Q-anaway’s case, and in the case provided for by the statute, the loss may be supplied by preferring a new indictment, and that, when it can be pursued, is the more conservative practice, if the statute had not directed it. But when, pending the trial, the indictment is lost or destroyed, the defendant being in jeopardy, the result is his discharge, or it must rest in the power of the court to supply the loss by substitution. Rights, neither of the State nor of individuals, are lost by the loss of records or the constituents of a record in the custody-of courts or public officers. We are of opinion the court had power, without the consent of the accused, or of his counsel, to order the substitution.”
[270]*270If the opinion from which we have so largely copied announces the correct practice, it is as applicable here as in Alabama; and, when applied to the case in hand, is authority in point for sustaining the action of the court in substituting the indictment. We think the reasoning of Chief Justice Brickell in Bradford’s case is sound and unanswerable, and, in so far as that case holds that the indictment may be substituted after the defendant has pleaded to it, we fully indorse it. We hold, therefore, in the case before us, that the court did not err in permitting the lost indictment to be substituted.
There is no requirement of our law that the jury must have the indictment with them when they are considering their verdict. It is provided that “the jury may take with them, on retiring to consider of their verdict, all the original papers in the cause, and any papers used as evidence.” (Code Grim. Proc., Art. 693.) This is permissive only, and not mandatory. Hor is there any requirement that the verdict of the jury shall be written upon the indictment, but only that it shall be in writing and signed by the foreman. (Code Crim. Proc., Arts. 705, 706.)
But it is further contended by the defendant’s counsel that in this case the indictment was not substituted in the manner required by the statute, and by the decisions of this court. We find in the record a written suggestion of the loss of the indictment, setting out the facts, and asking the court for leave to substitute, accompanying the same with a paper which is certified by the district attorney to be a substantial copy of the lost indictment; and following this motion and proposed substitute indictment is an order of the court granting the district attorney leave to substitute, and showing affirmatively that the substitution was , made. We are of the opinion that the record shows'a substantial and sufficient compliance with the statute, and with the decisions of this court. (Clampitt v. The State, 3 Texas Ct. App., 638; Turner v. The State, 7 Texas Ct. App., 596; Beardall v. The State, 9 Texas Ct. App., 262; Rogers v. The State, 11 Texas Ct. App., 608.) But even if the substitution had not been made in compliance with the statute, but was made under the direction and in a manner satisfactory to the court, we are of the opinion that in a case like this, where the substitution is after plea to the indictment, it would be held sufficient, independent of the statute.
There are several other assignments of error, some of which [271]*271we find are not supported by the record, and those that are supported by the record are not, in our opinion, tenable.
Opinion delivered December 5, 1883.
We find no error in the record, and the judgment is affirmed.
Affirmed.