
    PABST et ux. v. STATE.
    (No. 8122.)
    (Court of Criminal Appeals of Texas.
    March 5, 1924.)
    (. Criminal law &wkey;>589(l), 627(2) — Though defendant is entitled to copy of indictment, court need not delay trial.
    Trial court was not required to delay trial for two days on defendants’ motion, on the ground that they had not been served with a copy of the indictment, had never waived the right to have a copy, and requesting to be furnished with a copy, but it was reversible error to force defendants to.trial without a copy of the charges against them, in .view of Const, art. 1, § 10.
    2. Criminal law <&wkey;8l4(l7) — Where case rest- . ed on circumstantial evidence, charge on direct evidence improper.
    In a prosecution resting on circumstantial evidence, a charge held subject to the criticism that it carried the inference that the case rested partly upon circumstantial, -and partly upon direct, evidence.
    3. Criminal law-&wkey;>8l4(l7) — Where evidence is direct, charge on circumstantial evidence not called for.
    If there is any direct evidence on which a prosecution rests, no charge upon circumstantial evidence is called for.
    4. Criminal law &wkey;>784(5) — Charge on circumstantial evidence held defective for failure to state quantum of proof required.
    A charge on circumstantial evidence held defective in omitting to instruct jury that each fact necessary to establish guilt must be proved by the evidence beyond a réasonable doubt.
    Appeal from District Court, Lynn County; Clark M. Mullican, Judge.
    C. Pabst and his wife were prosecuted for an offense, and from the judgment they appeal.
    Reversed and remanded.
    6. E. Lockhart, of Tahoka, for appellants.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

The indictment was returned on March 8, 1923. Appellants were arrested and released on bond the next day. When the case w,as called for trial on the 14th day of March appellants presented a motion advising the court that they had never been served with a copy of the indictment, and had never waived the right to have a copy thereof, requested that they then be furnished with' a copy of the indictment, and that the cause be postponed -two days. The motion was overruled, and appellants forced to trial without a copy of the indictment being furnished. No facts were in evidence showing a waiver of the copy. The court was not required, under the showing made, to delay the trial for two days, but was in error in forcing appellants to trial without a copy of the charges against them. See article 1, § 10, Constitution of Texas; articles 551, 552, 553, C. O. P.; Venn v. State, 86 Tex. Cr. R. 633, 218 S. W. 1060; Revill v. State, 87 Tex. Cr. R. 1, 218 S. W. 1044; Mayes v. State, 87 Tex. Cr. R. 512, 222 S. W. 571; Wray v. State, 89 Tex. Cr. R. 632, 232 S. W. 808. In Matheson v. State, 92 Tex. Cr. R. 209, 241 S. W. 1014, we said:

“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.”

The assignment of error based on the refusal of continuance will not be discussed, as it will likely not arise again. The diligence used to secure the witnesses seems to have been sufficient, and the expected testimony material.

Incorporated in the general charge is the following instruction upon circumstantial evidence:

“So far as this case rests upon circumstantial evidence, you are instructed that, to warrant a conviction on circumstantial evidence, the circumstances must not only be consistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis or conclusion. The circumstances relied upon must be consistent with each other and with the facts intended to be established, and, When taken all together, must lead to a satisfactory conclusion, and leave the mind without a reasonable doubt as to the guilt of the accused. But when the evidence is in part circumstantial, and in part direct, and, taken all together, leaves no reasonable doubt of the guilt of the accused, he should be convicted; otherwise acquitted.”

A number of exceptions were presented to the foregoing paragraph of the charge, one being that it carries the inference that the case rests partly upon circumstantial evidence and partly upon direct evidence, while in truth and in fact it rests wholly upon circumstantial evidence. Unless we have overlooked something in the statement of facts, we think the charge given is subject to this criticism. It occurs to us that the case does rest wholly upon circumstantial evidence. If there be any direct evidence, then, as we understand the law, no charge upon circumstantial evidence is called for. We would further observe that the charge given does not appear to conform to the recognized and approved charges upon this subject. It omits to instruct the jury that each fact necessary to establish the guilt of accused must be proven by the evidence beyond a reasonable doubt. While no exception was taken because of this omission, we call attention to it in view of another trial. For an approved charge on circumstantial evidence applicable in most cases see section 204, p. 10S, Branch’s Criminal Laws of Texas. The authorities supporting the charge will be found collated under the same section.

For the errors pointed out, the judgment is reversed, and the cause remanded. 
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 259 S.W. — 37
     