Upon motion for rehearing appellant again presents the same matters which were urged upon original submission, as grounds for reversal of the judgment. We advert to only one. When appellant's case was called for trial his attorney presented an application for continuance, based upon the absence of three witnesses. In explaining an apparent lack of diligence in not *Page 242 having process for them issued earlier he states that he had been deprived of an opportunity to confer with his client and that process had been issued at as early a date as it was possible after he did have such conference. There was no general complaint urged in the application for continuance that appellant had not had sufficient time to prepare his case for trial by reason of being denied the privilege of conferring with his client. The reason given for the delay in issuing process for witnesses would have appealed strongly to this court if said witnesses had not been obtained; but that phase of the case is eliminated, because the witnesses were secured and were present in court at the time of trial, and were available to appellant if he desired to use them.
After the verdict was returned appellant filed a motion for new trial upon the ground, among others, that he was denied the privilege of conferring with his counsel. It appears from the bill of exception complaining of the action of the court in overruling his motion that the case was set for trial on October 22d; that on the 8th of that month J. F. Wilson had been appointed by the district judge to represent appellant; that immediately notice was given to Wilson as to his appointment, and on the following day (October 9th) he called upon the sheriff and was refused permission to see his client; that this request was repeated daily up to and including October 16th; that on the 17th he was given, for the first time, an opportunity to confer with appellant. In the meantime on several occasions the attorney had appealed to the district judge and was advised by him that the privilege of conferring with his client would be accorded him. This statement is not controverted. The sheriff gives as his reason for denying the conference the fact that Judge Nelms had formerly represented appellant in a murder case upon which he was confined in jail at the time of the killing out of which this present prosecution grew, and that Judge Nelms was endeavoring to get appellant to give information relative to the smuggling of arms into the jail with which the killing of the jailor occurred, and was endeavoring to induce appellant to give this information with a view to lightening the punishment in the present case. It is not made to appear from the record that these negotiations were by authority of any one in a position to offer appellant immunity or concessions of any kind. However, neither before the trial, nor at any time during its progress, was a motion presented to the trial court to delay the case upon the ground that the denial of conference with appellant had rendered it impracticable for counsel to make the necessary preparations for trial save as it related to the issuing of process for witnesses, which, as before stated, was unavailable because said witnesses were produced in court. The right of one accused of crime to confer with counsel and receive *Page 243 instruction and advice in the preparation for trial is one of the rights guaranteed by the Bill of Rights embraced in our Constitution. Such is the holding in many decisions of this court, and they are in harmony with the courts of other states having like constitutional provisions. These principles and some of the decisions are adverted to in the opinion of this court in the case of Turner and Barton v. State, 91 Tex. Crim. 627, 241 S.W. , 162.
While the reasons actuating the sheriff in not giving opportunity for conference because of an effort on the part of the officers to ascertain who had smuggled the pistols into the jail may have appeared satisfactory to him, yet we believe they are entitled to no weight in passing upon appellant's right to confer with his attorney. The sheriff does not in his affidavit say that appellant's attorney agreed to the delay, but simply that he thought the delay was satisfactory to the attorney. If the sheriff was prosecuted under Article 1046, P. C., which declares it a criminal offense for an officer in custody of a prisoner to prevent his consultation or communication with his attorney, or obtain his advice or services in the protection of his legal rights, then the excuse given by the sheriff might be a matter which would be admissible in evidence in his favor to rebut the claim that his conduct was wilful, but it could not and ought not to have any bearing upon the rights of an accused if he has not otherwise waived the right to complain of the refusal of such conferences. Art. 558, C. C. P., provides for the appointment of an authority for one accused of crime, and says that counsel so appointed shall have at least one day to prepare for trial. We think it is not to be understood that this statement in the statute means that in all cases one day would be sufficient, but in view of that statute if counsel so appointed feels that additional time is necessary to make preparation for the trial he should before announcing ready make a demand for further time, and show the court his reasons for such requested delay. We are of opinion that complaint of the character now presented comes too late when urged for the first time in motion for new trial. It has then passed beyond the power of the court to correct the matter, which he might have done if called to his attention before trial. As we understand the record appellant urges that he is entitled to a reversal of the judgment upon the broad ground that the sheriff acted wrongfully in declining to permit him to confer with his counsel. If he is right about this then exactly the same point would be available if this alleged wrongful act had occurred six months before the trial of the case. While we are not unmindful that the severest penalty known to the law has been assessed against appellant, we are unable to agree with him that under the record now before us the matter which we have been discussing is a ground *Page 244 upon which this court would be authorized to order a reversal of the judgment.
For the reasons stated the motion for rehearing is overruled.
Overruled.