
    GILLISPIE v. STATE.
    (No. 7629.)
    (Court of Criminal Appeals of Texas.
    April 18, 1923.)
    1. Criminal law <&wkey;627(7) — Right of defendant to copy of indictment may he waived.
    The right of a defendant to be furnished a copy of the indictment on demand therefor, under Const, art. 1, § 10, and Code Cr. Proc. 1911, art. 553, may be waived, either expressly or by the conduct of the defendant.
    2. Criminal law <&wkey;627(3) — Denial of motion for copy of indictment reversible error.
    Denial of defendant’s motion requesting that he be furnished a copy of the indictment against him made preliminary to the trial merely because the demand therefor was not made before the day of the trial held reversible error.
    3. Criminal law <&wkey;984 — Defendant should' he adjudged guilty of but one offense where indictment charged two felonies.
    Where indictment contained two counts charging separate felonies, the defendant should have been adjudged guilty ¿f but-one offense.
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    C. W. Gillispie was convicted of having possession of intoxicating liquor for the purpose of sale and of the unlawful transportation of such liquor, and he appeals.
    Reversed and remanded.
    Simpson, Moore & Parker, of Fort Worth, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.'
   MORROW, P. J.

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.

From 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 Tex. App. 33; Rice v. State, 49 Tex. Cr. R. 574, 94 S. W. 1024; Keener v. State, 51 Tex. Cr. R. 590, 103 S. W. 904; Scovill v. State (Tex. Cr. App.) 77 S. W. 792; Revill v. State, 87 Tex. Cr. R. 3, 218 B. W. 1044. 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 waiy-' er. The right to such copy is given by article 1, § 10, of the Constitution, 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 Tex. Cr. R. 51, 85 S. W. 1140; Revill v. State, 87. Tex. Cr. R. 4, 218 S. W. 1044; Venn v. State, 86 Tex. Cr. R. 633, 218 S. W. 1060; Mayes v. State, 87 Tex. Cr. R. 512, 222 S. W. 571; Wray v. State, 89 Tex. Cr. R. 632, 232 S. W. 808; Matheson v. State (Tex. Cr. App.) 241 S. W. 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 (Tex. Cr. App.) 246 S. W. 377; Knott v. State (Tex. Cr. App.) 247 S. W. 520-522; Zilliox v. State (Tex. Cr. App.) 247 S. W. 523.

The judgment is reversed, and the cause remanded.  