
    HUTTO v. STATE.
    (No. 8393.)
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1924.
    Rehearing Denied Dec. 17, 1924.)
    1. Criminal law &wkey;l 122(3) — In absence of evidence, exceptions'to charges relating thereto not passed upon.on appeal.
    In absence of evidence, exceptions to charges relating to matters depending thereon will not be passed upon on appeal.
    2. Criminal law <&wkey;l092(9), 1099(6) — Trial court lias power to extend time after adjournment of term for filing statement of facts and bills of exception.
    Trial court has power to grant extension of 30 days after adjournment of term in which to file statement of facts and bills of exception.
    On Motion for Rehearing.
    3. Criminal law &wkey;> 1092(7) — -Bills of exception filed within period allowed by trial court entitled to be considered.
    Bills of exception filed within 30 days from adjournment granted by trial court are entitled to be considered.
    4. Criminal law <&wkey;l 144(1/2) — Action of trial court presumed correct in absence of evidence and statement of facts.
    In absence of statement of facts and evidence, it is impossible to pass upon exception relating to matters dependent upon evidence, and action of trial court relating thereto will be presumed correct on appeal.
    5. Criminal law c&wkey;627(2)— Refusal of copy of information to accused, who, prior to asking for it, had obtained continuances, not error.
    Although under Const, art. 1, § 10, and Code Cr. Proc. 1911, art. 554, accused may demand copy of indictment or information, where accused had been on bond from time of arrest and had sought and obtained two continuances, and complaint and information was in possession of accused or of his counsel, refusal of request at trial to furnish him with copy of information was not error.
    6.-Criminal law <&wkey;627(7) — Right of accused to demand copy of indictment or information may be waived.
    Right of accused under Const, art. 1, § 10, and Code Cr. Proc., 1911, art. 554, to have copy of indictment or information on demand may be waived.
    Appeal from Haskell County Court; R. E. Lee, Judge.
    Wilson' Hutto was convicted of receiving stolen property less than $50 in value, and he appeals.
    Affirmed.
    W. H. Murchison, of Haskell, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for receiving stolen property less than $50 in value, with punishment of five days in jail and a fine of $20.

No statement of the facts proven accompanies the record. The transcript contains what purports to be exceptions to the charge. It is not authenticated in any way by the trial judge, and it is not shown when the same was presented, nor whether it was ever called to the judge’s attention. Salter v. State, 78 Tex. Cr. R. 325, 180 S. W. 691; Castelberry v. State, 88 Tex. Cr. R. 502, 228 S. W 216; Rhodes v. State, 93 Tex. Cr. R. 574, 248 S. W. 679.

Three special charges were requested, refused, and exceptions noted upon the charges. They all relate to matters depending upon the evidence, and we are not in a position to pass upon them in its absence.

Four bills of exception appear in the record, hone of which may be considered. The motion for new trial was overruled on July 18th, and the trial court made an order granting 30 days after adjournment of the term in which to file statement of facts and bills of exception. This order of extension he had the power to make. Gribble v. State, 85 Tex. Cr. R. 52, 210 S. W. 215, 3 A. L. R. 1096. Court adjourned for the term on August 22d. The 30 days expired on September 21st. All the bills were filed on September 24th, 3 days after the period of extension, hence too late to merit consideration. Victory v. State, 95 Tex. Cr. R. 219, 254 S. W. 478, and the authorities there cited; see, also, notes under article 845, C. C. P., Vernon’s Civil and Crim. Statutes, 1922 Supplement.

The judgment'is affirmed.

On Motion for Rehearing.

It is now made to appear that the trial term of court adjourned on August 25th, and that the recital in the caption to the transcript that it adjourned on August 22d 'was .a clerical error. The bills of exception were filed within the 30 days granted from adjournment and are entitled to be considered.

As stated in the original opinion no statement of facts is before us, and we find that bills 1, 3, and 4 all relate to matters dependent upon the evidence, which was before the court when the proceedings complained of were had. It is impossible for us to pass upon the questions in the absence of the facts, and we must presume the court’s action to have been correct.

This case was tried at the July term, 1923, of the county court for Haskell county. It is made to appear from bill of exception No. 2 that, after the state had announced ready for trial, appellant requested that he be furnished with a copy of the information. In the written request therefor there is no statement that he had not theretofore waived such copy. It further appears from the bill that at the time of this trial and theretofore appellant had been at large under bond, that no copy of said information had ever been served on appellant or furnished him by the clerk. The court appends to said bill the following explanation of his action in overruling the request:

“At the time said written request was presented and overruled, the clerk of the court was engaged in preparing the jury lists, the defendant was on bond and had never been confined but had appeared in court in person and by attorney on February 19, 1923, at which time said cause was continued on application of defendant; on March 5, 1923, said cause was continued by agreement; on June 18, 1923, said cause was again continued upon the application of the defendant on account of the physical condition of his wife, and on July 16th the case was called for trial, and the state announced ready, and then, for the first time, while the clerk and officers of the court were busy at the time when to grant said request would have unnecessarily delayed the trial of said cause, said defendant presented said request. The complaint in this case was filed January 30, 1923, and the defendant was arrested on that day and gave bond and was never confined in jail, and the complaint and information in this cause was either in the possession of the defendant and his counsel at all times from said date until the date of the trial nearly six months later, or was where 'they could have obtained same and was in their possession when said cause was continued as here-inbefore stated.”

In support of the proposition that the failure of the court to direct that a copy of the information be furnished him was an error which requires a reversal, he relies upon Golden v. State, 92 Tex. Cr. R, 553, 244 S. W. 816; Matheson v. State, 92 Tex. Cr. R. 208, 241 S. W. 1013; Revill v. State, 87 Tex. Cr. R. 1, 218 S. W. 1044; Pabst v. State, 96 Tex. Cr. R. 617, 259 S. W. 577.

The question arises under the provisions of article 1, § 10, of the state Constitution, and article 554, C. C. P., to the effect that an accused may demand a copy of the indictment or information charging him with crime. While this constitutional and statutory right is guaranteed to one accused of crime, and has been jealously guarded by the courts, it has been recognized that this right, like all others, save a trial by jury in felony cases, may be waived. 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; Revill v. State, supra; Redford v. State, 262 S. W. 766, and many other cases found in our reports. It is evident that the trial judge in the present case was under the impression that the facts recited in his explanation to the bill of exception constituted such a waiver. The Rice Case, supra, is direct authority that an accused waives his right to a copy of the accusation against him when he has been on bail, and without request for such copy continues his ease. To the same effect is Keener v. State, supra. The original opinion in Revill v. State, supra, affirming the judgment, was written under the impression that the defendant had continued his case after being released on bond, but the opinion on rehearing shows that an amended transcript revealed that the case had not been continued, but in fact had not been called at the former term and that no orders of any character had been entered on the docket. Then follows this significant statement from Judge Davidson: “The case not being called, and no orders entered at the July term, did not put appellant upon diligence to call for a copy of the indictment,” leaving the clear inference that the contrary would be true, and, if the case had been called for trial at the former term, diligence would have demanded that accused then should have requested a copy. The point made by the defendant was sustained on the amended record, but it clearlyappears that the court thought the original opinion was correct upon the facts then before it. In Golden’s Case, supra, no facts appear upon which the semblance of a waiver could be predicated. Our attention is directed by appellant’s brief to the. language of the court in Matheson v. State, supra, which was quoted with approval in Pabst v. State, supra. This must be read and construed in the light of the facts of said eases. In Matheson’s Case the only excuse offered by the court for refusing to comply with the request for copy of the accusation was that defendant had been on bail and had an opportunity to procure the indictment either in person or by his attorney. In Pabst’s Case the indictment was returned on March 8th; the defendant was arrested and released on bail on March 9th. The case was called for trial March 14th, when demand for copy of the indictment was made and refused. In neither of these cases were any facts shown indicating a waiver, or any lack of diligence in demanding a copy. The facts in the present case are entirely different. Appellant had been on bond from the time of his arrest; at two former terms of court he had himself sought and obtained continuances; the case had once been continued by agreement; and the complaint and information is shown to have been in the possession of appellant or his counsel when the continuances were obtained. Under this showing we are not inclined to hold the action of the trial court to have been erroneous.

The motion for rehearing is overruled. 
      ©soFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     