
    VENN v. STATE.
    (No. 5641.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1920.)
    ' 1. Ceiminal law <©=3627(2) — Right of defendant TO HAVE INDICTMENT SEEVED UPON HIM STATED.
    Under Code Cr. Proc. 1911, arts. 551 and 552, the state is bound to serve a certified copy of the indictment on the defendant if in custody, and, in case he is not in custody, to serve the same upon hiis being arrested, while article 553 recognizes the right of defendant who is on bail at the time of the presentment of the indictment to obtain a copy on demand; hence, where defendant was not under bond nor under arrest when the indictment was returned, but was at a later term arrested and gave bond, he was entitled to have a copy of the indictment served upon him before he could be forced to trial.
    2. Ceiminal law <©=3627(7) — Defendant ALONE CAN WAIVE SEEVICE OF COPY OF INDICTMENT ON HIM.
    The right of a defendant to have a copy of the indictment served upon him, which is guaranteed by Const, art. 1, § 10,' can be waived only by the defendant, and such waiver cannot be made by his counsel.
    3. Ceiminal law <©=>627(1) — Statutes be-QUIBING SEEVICE OF INDICTMENT ON DEFENDANT ABE CONSTITUTIONAL.
    While Const, art. 1, § 10, declaring that defendant shall have the right to demand the nature and cause of the accusation against him, and a copy thereof, cannot be abridged by the Legislature, those articles of the Code of Criminal Procedure providing for the service of indictments on defendants ai-e not invalid, being an extension of the constitutional provision and recognizing the right of a defendant in all cases to have a copy of the indictment.
    4. Ceiminal law <©=>627(7)— Execution of BAIL BOND BY DEFENDANT DID NOT WAIVE SEEVICE OF COPY OF INDICTMENT.
    Where defendant was not under bond or under arrest at the time the indictment was returned, and at a subsequent term he was arrested and gave bond, but nothing was done because the presiding judge was disqualified, defendant’s act in giving bond was not a waiver of his right to have a copy of the indictment served upon him when ax-rested, and so he was entitled on demand thereafter to have a copy of the indictment served upon him before he could be forced to trial.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    Will Venn was convicted of violating the prohibition law, and he appeals. '
    Reversed and remanded.
    C. E. Florence, of Gilmer, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of felony violation of the prohibition law and awarded two years in the penitentiary. He was not served with or furnished a copy, of the indictment presented against him. He made a request to that effect, and asked that he be furnished with such copy, but the court refused his request. The indictment was returned August 9, 1918. He was not under bond, nor under arrest. On the 18th of January, 1919, while the court was in session, he was arrested and gave bond. There was nothing done with the case at that term of the court. The reason assigned is that the special judge who presided over the court during that term was disqualified to try the case. It therefore went over to the succeeding term without being called for trial. During the succeeding July term of the court, 1919, and on the 14th day of that month, the ease was called and by the state continued until August 11th without calling upon defendant for announcement because the state was not ready for trial, some witnesses being absent. Upon the 11th of August the case was called for trial, and when the state made its announcement appellant made a request or demand to be served with a copy of the indictment. This was refused, and the defendant forced to trial. August 11th, the above-mentioned date, is therefore the first time he was called upon to respond for a trial.

C. C. P. art. 551, provides that:

“In every case of felony, when the accused is in custody, or as soon as he may be arrested, it shall be the duty of the clerk of the court whei-e an indictment has been presented, immediately to make out a certified copy of the same, and deliver such copy to the sheriff, together with a writ directed to such sheriff, commanding him forthwith to deliver such certified copy to the defendant.”

O. C. P. art. 552, provides that upon receipt of such writ and copy the sheriff shall immediately deliver such certified copy of the indictment to the defendant, and return the writ to the clerk issuing the same, with his indorsement thereon, showing when and how the same was executed. It will therefore be seen that, if he was in custody, he was entitled to the copy. See Woodall v. State, 25 Tex. App. 617, 8 S. W. 802; Johnson v. State, 36 Tex. 202; Holden v. State, 44 Tex. Cr. R. 382, 71 S. W. 600; Luster v. State, 63 Tex. Cr. R. 541, 141 S. W. 209, Ann. Cas. 1913D, 1089.

It will also be observed by the terms of this statute, if the accused is not in custody, the same rule applies as soon as his arrest occurs. In either instance it is the duty of the clerk to make out such certified copy and deliver to the sheriff for service on the accused. So he was entitled under- the statute to a certified copy of the indictment and the service provided by the Legislature. Of this he was deprived, although he made the necessary demand. Independent of either of these provisions of. the statute, the accused is entitled to a copy of the indictment. This is provided by article 1, § 10, of the Constitution in the following language:

“He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof.”

He made the demand, but was refused. This can in no way be dispensed with if the accused makes the demand. It is a constitutional guaranteed right upon which he can insist. That he may waive his right in this matter does not occur when he makes the demand, but if he makes a waiver it must be by himself. His, attorney cannot waive it for him. Lightfoot v. State, 77 S. W. 793. See, also, above-cited cases. The Legislature is powerless, had they undertaken to do so, to pass an act in contravention of the above provisions of the Constitution, but they not only have not sought to do so, but, on the contrary, expressly provided, under the circumstances stated, that he shall be served with a certified copy of the indictment. These statutory provisions are in no wise restrictive of his right under the Constitution. They are rather an enlargement of such guaranty and specify a procedure in such cases. The Legislature may not restrict guaranteed rights set out in constitutional provisions. They may enlarge those rights to some extent as a means of carrying out the wish of the people as- expressed in their ordained Constitution but cannot abridge those rights. But in any event the accused is entitled upon demand to have a copy of the indictment independent of the statute. See article 1, § 10, of the Constitution. This is expressly recognized in C. C. P. art. 553. The latter article applies when the accused is on bail at the time of the presentment of the indictment. Brewin v. State, 48 Tex. Cr. R. 51, 85 S. W. 1140; Light-foot v. State, 77 S. W. 793.

The execution of bail bond by defendant in January, 1919, was not a waiver of service of a copy of the indictment as provided in article 551, supra, and service as provided by article 552, supra. Brewin v. State, 48 Tex. Cr. R. 51, 85 S. W. 1140. Counsel cannot waive such right. It must be done by the accused himself, and usually this is required to be in writing. McDuff v. State, 4 Tex. App. 58; Richardson v. State, 7 Tex. App. 486; Lightfoot v. State, 77 S. W. 793. This cannot be treated as a technical matter. It is a guaranteed right vouchsafed to the citizen by the Constitution itself. Constitutional guaranties cannot be treated as technicalities, or as technical rules. These provisions of the Constitution are mandatory, and, if insisted on, must be followed. The will of our citizenship as expressed in the Constitution is a voice of sovereignty, and the will of sovereignty ás thus expressed cannot be treated from a technical standpoint, or as technicalities. The right is given that he may know of what he is accused in order that he may prepare to meet the accusation, and upon what grounds the state demands his punishment, and for the purpose of preparation of the case for trial. C. C. P. art. 578.

Wo are therefore of opinion, under the facts stated and the law mentioned as applied to this record, the request of defendant should have been granted, and the court erred in not so doing.

The judgment will be reversed, and the cause remanded.

LATTIMORE, J.

(concurring). I agree to the reversal of this case, upon the one proposition involved, that the trial court erred in not directing that the appellant be served with a copy of the indictment upon his request, as made in his motion, which was overruled by the court. It is expressly provided by the terms of article 553, Vernon’s Code of Criminal Procedure, that the clerk shall deliver a copy of the indictment to the defendant or his counsel, when requested. We take it that this imposes the duty of furnishing to the defendant a copy of the nature and character of the charge against him, which is provided for in section 10, art. 1, of our Constitution.

It appears from this record that on the day the case was called for trial appellant asked for a copy of the indictment, coupling with that the further request in his motion that he be granted two days in which to get ready for trial, or to file written pleadings. Under the terms of article 557, Vernon’s Code of Criminal Procedure, the writer does not think appellant entitled to the two days prayed for, because of the fact that at the time of the filing of such motion and making such request he was on bail.

Believing it the duty of the trial court to have directed service upon appellant of a copy of the indictment, when requested, and that the same was requested for the first time when said motion was filed, and that the refusal of the trial court to have said copy served on him was error, the judgment should be reversed. 
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