Appellant insists upon a rehearing, urging that we were wrong in upholding the action of the trial court in refusing his motion for a postponement of his trial for two days, and for service upon him of a copy of the indictment. A review of the facts in evidence convinces us of the correctness of their statement in the original opinion and of our decision regarding the law *Page 637 applicable thereto. While our decisions have upheld the right of appellant to a compliance with the statutory direction that if he be under arrest at the time of the indictment he shall be served with a certified copy of the indictment, or if he be not then under arrest, that as soon as he is taken into custody he shall be so served, still, as has been discussed in many cases, the object of such service can only be to put the accused in possession of the indictment so that he may know the nature and character of the charge and be prepared to defend against same; and we would not feel inclined to hold, in a case in which it might be made to appear that the accused was in custody when indicted, and that thereafter he had made bond and gone to the office of the district clerk and had requested a copy of the indictment and obtained same, that when his case was called for trial, same might be postponed for two days, or that he might then make a demand for a certified copy of the indictment prepared and served upon him by the sheriff in exact compliance with the directions of Articles 551 and 552 of our Code of Criminal Procedure. In other words, we are of opinion that both the spirit and purpose of the law is complied with when it is shown that a substantial copy of the indictment is in the possession of the appellant a sufficient length of time before his case is called for trial to enable him to properly prepare his defense, and that a literal compliance with and direction that such copy of the indictment be served upon him by the sheriff, is not necessary. We are of opinion that we correctly interpreted the case of Keener v. State, discussed in the original opinion, and that it being shown to the satisfaction of the trial court that a duly certified copy of the indictment against this appellant was obtained by his counsel more than a month prior to the trial of this case and was in possession of said counsel during consultations with this appellant, would be such substantial compliance with the purpose and spirit of the law as to obviate the necessity for service upon appellant of a certified copy of the indictment demanded at the time his case was called for trial.
The question raised as to this being a case of circumstantial evidence, was sufficiently discussed in the original opinion. It was not denied that the money of his principal came into the possession of appellant and was by him deposited in his name and thereafter used by him.
Appellant insists that we overlooked, or failed to discuss his motion to require the State's attorney to make a statement such as is referred to in subdivision 3 of Article 717 of our Code of Criminal Procedure, wherein our statute directs that the prosecution state to the jury the nature of the accusation and facts which are expected to be proved. This statute has always been held directory. Holsey v. State, 24 Texas Crim. App., 35; Cannon v. State, 84 Tex.Crim. Rep., 208 S.W. Rep., 660; Walsh v. State, 85 S.W. Rep., 208, 211 S.W. Rep., 241. However, when facts are shown to this court which lead to the conclusion that the refusal of a request *Page 638 made by the appellant that the State make such opening statement, was injurious to appellant, and we become convinced of that fact, such refusal will be held error. We do not find anything in the instant case to bring it within the exception. It would be impossible for this court to lay down any rule regarding this matter which would be of any value except that of reserving to ourselves the right to say whether injury appears from the refusal of such request. If we should say that it was reversible error not to grant such request, the question would then be raised in every case brought before us as to whether the statement made by the prosecution was sufficiently full and fair and accurate, or was oppressive, harsh and unsupported by the subsequent testimony introduced by the State. We content ourselves with saying that we think this court has gone as far in laying down the rule applicable as we feel justified in doing.
Being of opinion that the case was properly disposed of in the original opinion, the motion for rehearing is overruled.
Overruled.