
    Charley Jones v. The State.
    
      No. 1042.
    
    
      Decided November 28.
    
    1. Special Venire — Service upon Defendant — Statutory Law. — Article 617 of the Code of Criminal Procedure provides, that “no defendant in a capital case shall he brought to trial until he has had one day’s service of a copy of the names of persons summoned under a special venire facias, except where he waives the right or is on bail.” Held, that the statute is mandatory. Following Kellumv. The State, ante, p. 82.
    2. Same — Service upon Counsel Insufficient. — The fact that defendant “could not read,” and that the venire was served upon his counsel, is insufficient.
    Appeal from the District Court of Nacogdoches. Tried below before Hon. JAMES T. POLLEY.
    Appellant was indicted for the murder of Isom Finley, in Nacogdo-ches County, on the 5th day of August, 1894, by shooting him with a gun. When the case was called for trial, defendant moved a postponement of the trial until after he had been served one day with the names of the special veniremen. This motion was overruled, it having been shown, by the affidavit of one F. D. Huston, that he had heard the defendant say that he could not read, and it being further shown that service had been made on defendant’s attorneys.
    At the trial defendant was convicted of murder of the first degree, the penalty being assessed at death.
    In view of the disposition made of the appeal in the opinion, no further statement is necessary.
    
      
      Lewis & Smith, Branch & Garrison, Ingraham & Bateliff, George H. Mathews, and Tom B. Jennings, for appellant, cited:
    Code Crim. Proc., arts. 616, 617; Kell-umv. Tbe State, ante, p. 82; Harrison v.. The State, 3 Texas Crim. App., 558; Murray v. Tbe State, 21 Texas Crim. App., 466; Osborne v. Tbe State, 23 Texas Crim. App., 431.
    
      B. L. Senry, Assistant Attorney-General, for tbe State.
   DAVIDSON, Judge.

Appellant, having been arrested for murder, was placed in jail, where be remained until be was placed upon bis trial. Tbe list of tbe names of tbe veniremen summoned to try tbe case was not served upon him. When bis case was called for trial be requested that such service be bad, but was.refused. Exception was reserved, tbe trial ensued, and tbe death penalty was assessed.

Tbe statute provides, that “no defendant in a capital case shall be brought to trial until be has bad one day’s service of a copy of tbe names of persons summoned under a special venire facias, except where be waives tbe right, or is on bail.” Code Crim. Proc., art. 617. Tbe terms of tbe statute have been held, and we think correctly, to be mandatory. They guarantee to tbe accused a valuable right, of which be can not be deprived except by bis consent. Kellum v. Tbe State, ante, p. 82.

It is no sufficient answer to this that defendant “could not read writing,” and that tbe venire was served upon bis counsel. The defendant is entitled to service of such list of veniremen unless be waive it or is on bail.

¥e find no other errors in tbe record requiring a reversal.

For tbe error indicated, tbe judgment is reversed and cause remanded.

jReversed and remanded.

Judges all present and concurring.  