
    MATHESON v. STATE.
    (No. 6741.)
    (Court of Criminal Appeals of Texas.
    May 31, 1922.)
    1. Criminal law ©=o627(2)— Delivery of copy o-f indictment to accused not in custody required on request.
    While Code Cr. Proc. 1911, arts. 551, 552, require the sheriff to serve a copy of an indictment for a felony on accused if he is in custody, article 553 thereof does not require such service if he is not in custody, but requires the clerk of court to deliver such copy to him or his counsel, at the earliest possible time when requested, and refusal thereof, if demanded before accused announces ready for trial, id error.
    2. Criminal law ©=>590(I) — Refusal to delay trial to enable filing of pleading not error.
    Refusal of the court to delay a trial for theft for two days to enable accused to file written pleadings was not error, where he had been at large on bail and had an opportunity to procure the indictment and to inspect the original bill.
    3. Criminal law ©=>627(7)— Right to copy of indictment held not waived.
    The right of accused who is not in custody to have a copy of an indictment for felony delivered to himself or his counsel on request is not waived by the fact that he or his counsel could have demanded this earlier or could have examined the original indictment.
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    
      Earl Matheson was convicted of theft, and he appeals.
    Reversed and remanded.
    W. E. Myres, of Fort Worth, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Appellant was convicted of the theft of a cape, which was stolen from a store and found in his possession; punishment fixed at confinement in the penitentiary for two years.

Before announcing ready for trial, appellant filed a motion verified by his oath, in which he» stated that he had never been served with a copy of the indictment; that he had not waived the same, and added, “He now prays that he be furnished with a certified copy of said indictment,” and he •also claims the two days allowed by law in which to file written pleadings. The court, in qualifying the bill, states that appellant had been at large on bail and had an opportunity to procure the indictment, either in person or by his attorney and to inspect the original bill.

Appellant not being in custody, it was not required that he be served with a copy of the indictment against him. See articles 551 and 552, Code of Crim. Proc. In article 553, however, it is said that—

“When the defendant in a case of felony is on bail at the time the indictment is ore-sented, it is not necessary to serve him with a copy, but the clerk shall deliver a copy of the same to the defendant or his counsel, wheD requested, at the earliest possible time.”

In the instant case, the court was not in error in refusing to delay the trial for two days, but was not warranted in rer fusing to grant appellant’s request to be furnished with a copy of the indictment. The subject is fully discussed in Venn v. State, 86 Tex. Cr. R. 633, 218 S. W. 1060; Revill v. State, 87 Tex. Cr. R. 1, 218 S. W. 1045; Mayes v. State, 87 Tex. Cr. R. 512, 222 S. W. 571; Wray v. State, 89 Tex. Cr. R. 632, 232 S. W. 809. In these cases, the statutory and constitutional provisions and the earlier decisions are reviewed. The conclusion therein stated is that a copy of the indictment should not be refused when demanded by the accused at any time before he announces ready for trial when one has not previously been served upon him, and when he has not waived his right to demand it. The mere fact that he might have demanded it earlier, or that his attorney might have done so, or that he might have examined the original indictment, does not constitute a waiver. The command of the statute is imperative and is in accord with the Constitution. It requires that a copy of the indictment be delivered to the. accused. This is not an onerous duty imposed upon the court' or its ‘ ‘ officers. It need result in no delay, and we really can discern no reason why it should be denied. At all events, the Constitution and the statute confer upon one accused of a felony the right to a copy of the indictment and impose upon the officers of the court the duty to furnish it. Following the previous decisions of this court, we are constrained to hold that in the instant case the appellant not having been served or furnished with a copy of the indictment, and not having waived his right to one, the court committed error in refusing to supply it. Because of the error pointed out, the judgment must be reversed and the cause remanded, and it is so ordered. 
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Nu'mbered Digests and Indexes
     