State v. Adams

17 Tex. 232 | Tex. | 1856

Wheeler, J.

The language of the Statute is very comprehensive, embracing all cases where the “ records and papers, or any part thereof, appertaining to the proceedings in any Court of this State may have been, or may hereafter be, lost or destroyed,” &c, (Hart. Dig. Art. 2756.) The language is certainly broad enough to include the case of a lost indictment. The statute makes no exception; and we see nothing in it, or in general principles, to warrant the Court in making an exception, which the Legislature has not seen proper to make. It may be very difficult to make the proof necessary to supply the loss ; and the more convenient course, in practice, doubtless would be to prefer a new indictment, as in the case of The State v. Elliott, (14 Tex. R. 423.) And this may always be done where the grand jury are in session, and the State’s witnesses are in attendance. But if the District Attorney sees proper to supply the loss in the mode provided by the Statute ; and can prove clearly and conclusively the exact contents of the lost indictment, we see nothing to prevent it. The proof in this case established conclusively the identity of the copy with the original indictment for which it was proposed as a substitute ; and we think the Court erred in refusing to permit the trial to proceed upon it. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.