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. *Page 283 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.