Carter v. State

• Decision Date: 21 March 1900
• Citation: 58 S.W. 80
• Parties: CARTER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 80

58 S.W. 80

CARTER v. STATE.

Court of Criminal Appeals of Texas.

March 21, 1900.

Appeal from district court, Kaufman county; J. E. Dillard, Judge.

Henry Carter was convicted of manslaughter, and he appeals. Reversed.

M. H. Gossett, James Young, and J. D. Cunningham, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of manslaughter, and his punishment assessed at two years' confinement in the penitentiary.

There is in the record what purports to be a substituted indictment, which charges appellant with the murder of Charles Carter by striking him with a stick of wood; the same being a deadly weapon, etc. The only evidence in the record in regard to the substitution is found in the following language: "I, Jed C. Adams, county attorney in and for Kaufman county, Texas, do certify and state, in my said official capacity, that the within and foregoing writing is substantially the same indictment as that which has been mislaid, and the same that is referred to in my written suggestion this day filed herein, and herewith presented to the court." This was signed officially by said Adams, as county attorney of said county. Following this we find this indorsement: "We, the attorneys for the defendant, do agree that this is a true substituted indictment in this cause." This is signed by appellant's attorneys. It is contended the judgment must be reversed because of the failure of a proper substitution of said indictment. The record does not contain any written suggestion of said county attorney as to why the indictment should be substituted, nor is there a judgment in the record ordering the substitution. Article 470, Code Cr. Proc., provides: "When an indictment or information has been lost, mislaid, mutilated or obliterated, the district or county attorney may suggest the fact to the court; and in such case another indictment or information may be substituted upon the written statement of the district or county attorney that it is substantially the same as that which has been lost, mislaid, mutilated or obliterated. Or another indictment may be presented as in the first instance, and in such case, the period for the commencement of the prosecution shall be dated from the time of making such entry." In Burrage v. State (Tex. Cr. App.) 44 S. W. 169, it was held that: "The rule of practice under this statute has been held to require the presentation of a formal motion alleging the loss of the indictment, and asking permission to substitute the same. This should be accompanied by a copy of the indictment, or a written statement by the district or county attorney that it is substantially the same as the lost indictment. The statute does not require, but we think the better practice would be to serve notice on defendant of the motion to substitute. On the trial before the court, the judge adjudicates the matter; and if satisfied of the existence and loss of the original indictment, and that the copy presented is a substantial copy of the one lost, he...