1. Evidence — Contemporary Crimes — Robbery and Rape. — On a trial for robbery of one woman, held, that it was competent for the State to prove that at the same time and place, and in the same transaction, the defendant ravished another woman who had no money to give him, the two women being together when attacked, and defendant using his pistol in both instances to enforce his demands.
2. Practice — Two Indictments — Defendant's Right to Service of Copy of the Second After the First was Dismissed — Waiver. — Where it appeared that defendant had been served with a copy of an indictment which, being ascertained to be wholly defective, was dismissed by the prosecution without the knowledge of defendant, and a second indictment was presented, a copy of which was not served upon the defendant, and when the latter was being read to the jury at the trial, defendant discovering that it was a new indictment, objected to the trial because he had not been served with a copy, which objection was overruled: Held, that the ruling was error; that defendant was entitled to service of a copy of the indictment upon which he was being tried, and that his announcement of ready for trial under the circumstances did not waive his right to such service.
DAVIDSON, JUDGE.
Appellant was convicted of robbery. The evidence in regard to the rape of Jennie McGrew was properly admitted. It was a part and parcel of the same transaction, and committed in connection with the robbery. Defendant forced the woman Clara Huston to deliver to him her money, and at the same time and place compelled the woman McGrew to submit to his desires, because she had no money to give him, using his pistol in both instances to enforce his demands. The two women were together when attacked by defendant.
2. The grand jury returned a bill of indictment, number 7427, against defendant, charging him with the robbery, a certified copy of which was only served upon him. Subsequently the indictment, number 7494, in this case, was presented, charging him with the same offense. He was not served with a copy of the latter indictment. The first indictment, being wholly insufficient, in that it failed to allege ownership of property, was dismissed without the knowledge of defendant; and his counsel, believing that he was being tried upon the original or first indictment, announced ready for trial. When the case was called the jury was empanelled, and upon hearing the indictment read to the jury it was discovered by the attorneys to be another. Defendant then objected to being tried until he had been served with a copy thereof, etc. He was compelled to proceed to trial, and this action of the court is assigned as error. We are of the opinion that the point is well taken. The defendant is entitled to service of a copy of the indictment upon which he is being tried in a felony case. He can not be held, under the circumstances of this case, to have waived his right to be served with a copy. Willson's Crim. Stats., secs. 2094, 2095, 2098; Lockwood v. The State, ante, 137. For the error indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.
Judges all present and concurring.