Stephens v. State

147 S.W. 235, 66 Tex. Crim. 359, 1912 Tex. Crim. App. LEXIS 259

Opinion

DAVIDSON, Presiding Judge.

The affidavit, which charges appellant with catching and taking fish from a pond and stream and by muddying, ditching and draining and by means of nets and seines, etc., was filed on the 12th day of October, 1911. The information was filed on the same day. The judgment of conviction was entered the same day.

Wlhen the case was called for trial appellant made a motion asking that he be allowed the two days provided by statute in which to prepare and file pleadings and make preparation for trial. This was refused by the court, and appellant was placed upon trial. The court signs the bill of exceptions with the statement that when this was done the defendant and his counsel declined to say whether or not time was needed to enable them to get ready for trial. His motion for the two days is all the notice the statute authorizes. The statute grants him two days time when he desires it. The statute is held to be mandatory by the authorities. This action of the court was-error. Article 578 of Revised Code of Criminal Procedure; Reed v. State, 31 Texas Crim. Rep., 35; Evans v. State, 36 Texas Crim. Rep., 32; Holden v. State, 44 Texas Crim. Rep., 382; McFadin v. State, 44 Texas Crim. Rep., 471; Whitesides v. State, 44 Texas Crim. Rep., 410; King v. State, 56 S. W. Rep., 926; Johnson v. State, 49 S. W. Rep., 618; Lightfoot v. State, 77 S. W. Rep., 792. These we deem sufficient number of authorities to support the contention of appellant and show error of the court.

The judgment is reversed and the cause is remanded.

Reversed and remanded.