The conviction was for burglary. The appellant, before announcing ready for trial, presented to the court a motion in writing stating that he was not under bond when the indictment was returned, had not been served with a certified copy of the indictment, and concluded as follows:
"Wherefore, we respectfully ask the court to postpone this cause for at least two full days, and that the officers be required to serve him a copy of said indictment before he is required to further answer herein."
It appears from the bill as qualified that the appellant had not been served with a copy of the indictment, and that no copy was delivered to him; that at the time of the indictment he was under bond. The bill of indictment was returned in July, 1918, appellant having previously been arrested and given an appearance bond. After his arrest on July 6, 1918, he was again released upon bail. The cause was continued, and this trial took place at a subsequent term of the court February 8, 1919. The appellant being at large on bail at the time the indictment was filed, the law did not require that he be served with a copy of the indictment. Code of Crim. Procedure, Art. 553. He was, however, entitled to a copy of the indictment upon making his request therefor of the clerk. It is manifest from the bill of exceptions that the object sought by the *Page 3 appellant was that the trial be delayed two days, and that the motion was directed to that end upon the mistaken theory that the appellant had been in custody at the time the indictment was filed. He or his counsel could, at any time within office hours during the six months intervening between the time he was indicted and released on bail and the time of his trial, have requested the clerk to deliver a copy of the indictment. His failure to do so renders his present complaint unavailable, particularly in view of the fact that the motion made was manifestly not intended nor at the time construed by the court or counsel as a request for a copy of the indictment, but, as stated, was a demand for delay on the theory that the circumstances were such as to require the service of a certified copy of the indictment. It has been frequently declared that when the facts are such as to require the service of a certified copy of an indictment, as required by Articles 551 and 552, Code of Crim. Procedure, that the accused may by his conduct waive the right; Barrett v. State, 9 Texas Crim. App., 33; Rice v. State, 49 Tex.Crim. Rep.; Keener v. State, 51 Tex. Crim. 590; and this principle has been applied to the provision of the statute requiring the clerk on demand to deliver to the accused a copy of the indictment. Scovill v. State, 77 S.W. Rep., 792; Encyc. of Pleading and Practice, vol. 10, p. 471; Record v. State, 36 Tex. 521.
On a former hearing the prosecution was ordered dismissed because of a defective indictment. It now appears on a motion for rehearing that the original indictment was not defective, but that it was incorrectly copied in the transcript. This has been remedied, and the reversal and order of dismissal are set aside, the motion for rehearing granted, and the judgment affirmed.
Affirmed.
ON REHEARING. February 18, 1920.