Court of Criminal Appeals of Texas, 1893

Harris v. State

Court of Criminal Appeals of Texas · Decided June 22, 1893 · No. 236. · Davidson

22 S.W. 1037; 32 Tex. Crim. 279; 1893 Tex. Crim. App. LEXIS 267 (South Western Reporter)

Counsel

Burke, Kirlicks Griggs, for appellant. — 1. The court erred in forcing appellant (defendant below) to plead to and go to trial upon an indictment, over appellant's objections that the said indictment was irregular in form, not having been signed by the foreman nor any member of the grand jury, and that no copy of said pretended indictment had ever been served upon appellant, the appellant having been in the custody of the officers of the law from a time prior to the presenting of said indictment, and not on bail. Const., sec. 10, Bill of Rights; Code Crim. Proc., arts. 504, 506; Record v. The State, 36 Tex. 521 ; Johnson v. The State, 36 Tex. 202 ; McDuff v. The State, 4 Texas Cr. App., 58; Barrett v. The State, 9 Texas Cr. App., 33; Richardson v. The State, 7 Texas Cr. App., 486. 2. The court erred in permitting State's witnesses to testify, over defendant's objections, as to the matter of an alleged rape committed upon witness Jennie McGrew, the same being irrelevant and incompetent, and which testimony tended to and did prejudice the jury against the defendant, and which also was calculated to and did injure the rights of the defendant. McWilliams v. The State, 44 Tex. 116 ; Tyson v. The State, 14 Texas Cr. App., 388; Draper v. The State, 22 Tex. 400 [ 22 Tex. 400 ]; Preston v. The State, 4 Texas Cr. App., 186; McKnight v. The State, 6 Texas Cr. App., 158; Sommerville v. The State, 6 Texas Cr. App., 433; Obert v. Landa, 45 Tex. 539 ; Jackson v. The State, 20 Texas Cr. App., 190. R.L. Henry, Assistant Attorney-General, for the State.

Opinion of the Court

DAVIDSON, Judge.

Appellant was convicted of robbery. The evidence in regard to the rape of Jennie McGrew was properly admitted. It was a part and parcel of the same transaction, and committed in connection with the robbery. Defendant forced th'e woman Clara Huston to deliver to him her money, and at the same time and place compelled the woman' McGrew to submit to his desires, because she had no money to give him, using his pistol in both instances to enforce his demands. The two women were together when attacked by defendant.

2. The grand jury returned a bill of indictment, number 7427, against defendant, charging him with the robbery, a certified copy of which was only served upon him. Subsequently the indictment, number 7494, in this case, was presented, charging him with the same offense. He was not served with a copy of the latter indictment. The first indictment, being wholly insufficient, in that it failed to allege ownership of property, was dismissed without the knowledge of defendant; and his counsel, believing that he was being tried upon the original or first indictment, announced ready for trial. When the case was called the jury was empanelled, and upon hearing the indictment read to the jury it was discovered by the attorneys to be another. Defendant then objected to being tried until he had been served with a copy thereof, etc. He was compelled to proceed to trial, and this action of the court is assigned as error. We are of the opinion that the point is well taken. The defendant is entitled to service of a copy of the indictment upon which he is being tried in a felony case. He can not be held, under the circumstances of this case, to have waived his right to be served with a copy. *283 Willson’s Crim. Stats., secs. 2094, 2095, 2098; Lockwood v. The State, ante, 137. For the error indicated, the judgment is reversed, and the cause remanded.

Severserl and remanded.

Judges all present and concurring.

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