This is a theft conviction. When the indictment was presented, October 17, 1904, appellant was in jail. Subsequent to the presentment, she gave bond, which was forfeited for her non-appearance. Upon her subsequent arrest, she was brought into court; and asked whether or not she was ready for trial, and answered that she was not; that she had no witnesses and no attorney. The court called upon defendant for her witnesses, secured a list, ordered process, returnable at 9 o'clock, December 14; and appointed counsel to take charge of and represent her cause. The trial was set down for 9 o'clock, December 14. This occurred about noon of December 13. At 9 o'clock on the 14 of December, the case was again called; appellant asked for a postponement for two days, because she had not been served with a copy of the indictment. This was overruled. It may be further stated that, when the capias was served on her, the day following the indictment, she was in jail; and on November 12, was released on recognizance, and November 22 cause set for trial on November 28. When appellant asked for the postponement of the trial on account of the failure to have a copy of the indictment served upon her, and for the two days in which to prepare for trial, the court ordered the clerk to furnish defendant with a copy of the indictment. This was done, and appellant forced to proceed with the trial. These matters are properly presented by bill of exceptions. We are of opinion that, under this showing, appellant was entitled to the postponement. We understand this to be the requirement of the statute, and the unbroken line of decisions construing this statute so hold. McDuff's case, 4 Texas Crim. App., 58; Holden v. State, 71 S.W. Rep., 600; Stokes v. State, 35 Tex.Crim. Rep.; Lightfoot v. State, 77 S.W. Rep., 792. There are a great many authorities in line with those cited. The judgment is accordingly reversed and the cause remanded.
Reversed and remanded.
ON REHEARING. *Page 53
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