The appeal herein was dismissed for reasons stated in the opinion dismissing it. Later, upon proper showing, it was re-instated and the judgment affirmed. It is claimed on this motion for rehearing that the affirmance should not have obtained.
The question at issue was the failure of the court to grant appellant's request to have a certified copy of the indictment served upon him before going to trial. The facts show that he was arrested at the term of court at which the indictment was returned, July, 1918; that he was tried at the following January Term, 1919. When the case was called for trial in January he filed his request to have a certified copy of the indictment served upon him, and it may *Page 4 be stated also it was for the purpose of having the two days allowed by the statute in which to prepare for trial and file such pleadings as he saw proper. There was no question of the fact that appellant made the request for service of copy of the indictment. The case was affirmed upon the theory that at the July term it was continued, and also that appellant was under bond at the time the indictment was returned, fixed by the justice of the peace in an examining trial, and that he was under this bond at the time of the return of the indictment in July, 1918. A certificate of the clerk attached to the motion for rehearing manifests the fact that at the July term the case was not called for trial, and there were no orders of any character entered upon the docket. The former opinion will be modified in accordance with the certificate of the clerk.
The case not being called and no orders entered at the July term did not put appellant upon diligence to call for a copy of the indictment. The facts show he was not in custody at the time of the return of the indictment, but if he was under bond, then the statute, Article 551, C.C.P., did not require the clerk to issue a certified copy of indictment to be served upon appellant by the sheriff under the terms of Article 552, C.C.P. He would, nevertheless, have the right to call for a copy of the indictment under Article 1, Sec. 10, of the Constitution, and Article 553, C.C.P. He did make the demand and was refused. He was certainly entitled to have this copy in any event, but if the facts were properly shown that he was under bond at the time of his arrest, then we would hold that he was entitled to have copy of the indictment at the time he called for it, but not entitled to a postponement of the case. Such we understand to be the weight of authority as shown by the cases. The question here is, whether or not it is shown he was under bond. The court, in qualifying the bill of exceptions refusing appellant's request to have copy of the indictment, states it was not known to himself or to counsel for appellant that the party had been arraigned before the justice of the peace and was under bond at the time of the return of the indictment. He certifies this was not shown by the record. This seems, therefore, to be stated by the judge without the introduction of any evidence. There was no evidence introduced upon the question, and the judge making the certificate did not testify. How or where he got his information is not stated. It is also shown by the bill that appellant excepted to the qualification and statement of the trial judge. We are of opinion under the authorities that appellant was entitled to service of the copy as provided in Article 551, C.C.P. If the judge desired to testify or state facts dehors the record, then he should have taken the witness stand as any other witness, or if he was stating facts that came to his knowledge by hearsay in regard to a trial in the examining court, he should have proper evidence *Page 5 before the court that such were the facts. The qualification of the judge must state facts that occur in court and under his cognizance as a judge, or if it be extraneous and dehors the record, then proper evidence must be shown, and if he desires to make statement of facts himself he must take the stand as any other witness in order to verify those facts. He cannot go out and inform himself of facts bearing upon a case and then come into court or use in court the facts thus obtained. They must be in the record. Appellant is entitled to be confronted by the witness against him and the testimony that he is to meet. The judge's information or statement may or may not be correct. Doubtless it may have occurred as he stated, but this is not sufficient. This question came in Leonard v. State,53 Tex. Crim. 187. The opinion was written by Judge Ramsey. This proposition was again re-asserted in Graham v. State,72 Tex. Crim. 9. The doctrine was again re-asserted in Bullington v. State, 78 Tex.Crim. Rep., and again re-affirmed in Lagow v. State, 81 Tex.Crim. Rep., at page 462. So that doctrine seems to be well settled. If it was a properly verified fact that appellant was under bond at the time that he was arrested, then the court did not err. If he was not under bond, then his request should have been granted. The statement of the judge cannot be regarded as proof of the fact that appellant was under bond. As before stated, there should have been evidence introduced to meet this request showing that appellant was under bond at the time of his arrest in order to avoid his guaranteed rights under the Constitution and under Arts. 551 and 552, C.C.P. We are of opinion as presented on motion for rehearing that we were in error in affirming the judgment.
The motion for rehearing is granted, the affirmance set aside, and the motion is reversed and the cause remanded.
Reversed and remanded.