
    MORRIS v. STATE.
    (No. 7679.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1924.)
    1. Indictment and information &wkey;>l4—Evidence of loss and contents of indictment held not to justify substitution of copy.
    On motion, under Code Cr. Proc. 1911, art. 482, to substitute a copy of an indictment for one alleged to be lost, testimony of the assistant district attorney conflicting -with that of defendant’s attorney as to similarity of the indictments, in the absence of testimony of the clerk of court to prove the loss or search for the original, held not to justify substitution of a copy:
    2. Criminal law <@=>304(16)— Loss of indictment filed not a matter of judicial knowledge.
    Loss of an indictment filed with the clerk of court is not a matter of judicial knowledge, in view of Code Cr. Proc. 1911, art. 482, allowing proof of such loss and substitution of a copy on written statement of state’s attorney that the copy is substantially the same as the original.
    3. Indictment and information <@=>14—Sugges-tion of district attorney that copy of indictment be substituted for lost one should be made in open c'ourt and order spread on minutes. •
    To substitute a copy of an indictment for the lost original under Code Cr. Proc. 1911, art. 482, the record should show that suggestion of state’s attorney as to the loss had been made in open court, and the court’s order for substitution should be spread on the minutes.
    4. Criminal law &wkey;>l!l(f(8)—Certiorari effective to correct inadlvertent omission from transcript. ■
    If the transcript through inadvertence fails to show an order for substitution of a copy of the indictment for the original, it could be corrected on rehearing by certiorari.
    5. Criminal law &wkey;>l086(8)—Absence of indictment held to require reversal of conviction.
    Absenee from the record of the original indictment or one shown to have been legally substituted, under Code Cr. Proc. 1911, art. 482, held to require reversal of conviction for keeping a building for sale of liquor.
    Appeal from Criminal District Court, Dallas Comity; C. A. Pippen, Judge.
    M. Morris was convicted of keeping a building for sale of intoxicating liquors, and he appeals.
    Reversed and remanded.
    A. H. Mount, of Dallas, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for keeping a building for the purpose of selling intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year. ,-

Provision is made in article 482, Code Cr. Proc. for the substitution of a lost indictment. On the present record it appears that on the 3d day of November, 1922, the district attorney presented to the court a motion which contained an averment to the effect that on the 16th day of September, 1922, there had been legally presented against M. Morris, in cause No. 6332, an indictment charging him with the offense of possession of intoxicating liquor for the purpose of sale, and transporting liquor for the purpose of sale, and keeping and being interested in keeping a building as a place where intoxicating liquors were sold, and other counts in said indictment.

It was also averred in said motion that the indictment had been lost, and after diligent search could not be found, and that the copy of the indictment attached to the motion was a substituted copy of the one returned by the grand jury. The court, on the hearing of the motion, took the testimony of the assistant district attorney and also of the attorney for the appellant. There was a conflict in their testimony touching the contents of the indictment. The assistant district attorney testified that he had never seen the indictment after it was filed, while the attorney for the appellant testified that he saw the indictment, but that it was not like the one presented, in that it charged a different offense. '

The clerk of the court, who was the custodian of the indictment, had not been called as a witness to prove the loss or search for the original indictment. Its loss was not proved, and was not a matter of judicial knowledge.

Another question arises from the record, namely, that there appears in the cause no order made by the court authorizing the substitution of the lost indictment. Such an order seems to be necessary. Prom one of the opinions of this court, the following quotation is taken:

“The rule of practice under this statute has been held to require the presentation of a formal motion alleging the loss of the indictment, and asking permission to substitute the same. This should be accompanied by a copy of the indictment, and a written statement by the district or county attorney that it is substantially the same as the indictment lost. The statute does not require, but we think the better practice would be, to serve notice on the defendant of the motion to substitute. On the trial before the court the judge adjudicates the matter; and if satisfied of the existence and loss of the original indictment, and that the copy presented is a substantial copy of the one lost, he should make a formal order or judgment substituting the same for the original indictment: This judgment should be entered in the minutes of the court, and constitutes a part of the record. See Clampitt v. State, 3 Tex. App. 638; Turner v. State, 7 Tex. App. 596; Rogers v. State, 11 Tex. App. 608; Strong v. State, 18 Tex. App. 19. In this case there is no order or judgment of the court substituting the lost indictment, and we cannot presume that such an order existed. We think this order of substitution is a jurisdictional fact, and that it must be shown.” Burrage v. State, 44 S. W. 169.

This conclusion is supported by the earlier case of Graham v. State, 43 Tex. 550, in which the Supreme Court, speaking through Judge Ireland, said:

“The law requires all felonies to be tried upon indictment. Paschal’s Dig. art. 2859. An indictment is the work of a grand jury and the court. The statute allowing the substitution, in view of the constitutional right and the grand jury system, is an extraordinary provision. It allows the district attorney to be the judge of whether the substituted paper is in fact a copy —a ‘substantial copy.’ Thus he is substituted for court and grand jury upon his mere statement, judging for himself what is material and what is not.”

Upon these reasons the record should show that the suggestion 'to substitute had been presented in open court, and that there had been spread on the minutes of the court the court’s order that the paper presented be substituted for the original and lost indictment. If an order of the court was made and entered authorizing the substitution of the indictment, it should appear in the record. If by inadvertence it had been omitted from the transcript, this could be perfected on motion for rehearing by certiorari. See Burrage v. State (Tex. Cr. App.) 44 S. W. 1104.

In the present state of the record and in the absence of the original indictment or one shown to have been legally substituted under an order of the court, the judgment must be reversed and the cause remanded. Such is the order. 
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