Record v. State , 36 Tex. 521 ( 1872 )

Walker, J.

The only error assigned in this case is as follows : “ That the defendant was not on bail at the time of the “ presentment of the indictment against him, and no copy there- “ of was served on him at the time of his arrest, or at any sub- “ sequent time up to the date of trial, nor even then.” Article 2930, Paschal’s Digest, provides that “ in every case of “ felony, when the accused is in custody, or as soon as he may “ be arrested, it shall be the duty of the clerk of the court, “ when an indictment has been presented, immediately to make “ ont a correct copy of the same, and deliver such copy to the “ sheriff, who shall immediately deliver the same to the defend- “ ant.” And Article 2935 Paschal’s Digest, further provides: “ hTo arraignment shall take place until the expiration of at least “ two entire days after the day on which a copy of the indictment “ was served on the defendant, unless the right to such copy or to “ such delay be waived, or the defendant was on bail.” The statute makes it the duty of the clerk to make out a copy, and of the-sheriff to deliver the same to defendant, but it prescribes no means by which the evidence of issuance or service of such copy shall be perpetuated, or brought to the knowledge of the court. The clerk is not authorized to make the fact of the issuance a matter of record, neither is the sheriff authorized to make an official return of such service ; and it would be difficult to determine how' the court could be legally informed whether a copy of the indictment had or had not been served upon the defendant, excepting through the defendant himself. Under the statute, he has a legal right to object to being put upon trial until he has been served with a copy of the indictment, as prescribed by the statute, and if this right should be denied him by the court, he would have a right to his bill of exceptions, and by an appeal reverse the rulings of the court in that particular.

But if he fail to demand his right in the court below, or fail to show affirmatively, by the record, any error in that court, we are unable to see how an appellate court can legitimately interfere in his behalf. There is no affirmative evidence in the record that the assignment of errors' is true. For aught that appears in the record, the defendant may have been served with a copy of the indictment in full compliance with the statute, and for aught that appears in the transcript, or the assignment of errors, the defendant may have appeared in open court and waived the service of a copy of the indictment, which he certainly had a right to-do.

Again, the object of the statute is to give the defendant timely notice of the accusation against him, that he may prepare for his defense; and it also provides that he may waive that right. If, therefore, a defendant should see proper to go into court, and remain silent as to the service of a copy of the indictment, and when called upon plead to the same, without objection; and especially when he failed in his motion for a new trial to make known to the court that he had been deprived of this important right, that the error, if one, might have been corrected there, the presumption of a waiver would be too strong for a denial, especially when the question is first raised in this court.

We are therefore of the opinion, that the defendant is not entitled to a reversal of the judgment of the District Court for the cause assigned, and discovering no error in the record to ■authorize a disturbance of the same, it is affirmed.

Affirmed.