In withdrawing the original opinion and affirming the conviction on the 27th days of June, 1934, we did not observe that the appellant's motion to strike from the record the supplemental transcript filed on the 13th day of June, 1934, contained material matter which was not brought to our attention. It appears from the supplemental transcript that both the county attorney and the district attorney represented to the court that the complaint against the appellant had been lost or mislaid, and sought the privilege of substituting the complaint. What is denominated a "substantial copy" of the complaint accompanied the application. It was also made to appear in said supplemental transcript that the substitution was made without notice to the appellant or any of his counsel. The procedure, as required by law, demands notice to the accused. See Tex. Jur., vol. 23, p. 608; sec. 15; article 418, C. C. *Page 53 P. See also Hawk v. State, 115 Tex.Crim. Rep., 27 S.W.2d 178. As understood, the record affirmatively shows that the complaint upon which the appellant was tried and convicted was substituted without any notice to him or his counsel, and without any opportunity to contest the substitution. We are therefore constrained to grant the motion for rehearing, set aside the affirmance and to order a reversal of the judgment of conviction.
Reversed.