A conviction of murder in the second degree was the result of this trial in the court below, the punishment being assessed at thirty years in the penitentiary.
At about half-past 5 o'clock in the evening, the court announced that a recess would be taken until 7. The defendant was conveyed from the court room to the jail. Counsel for the prosecution announced they desired to examine another witness, then in the court room, which would close the State's case. After the State had concluded the examination *Page 440 of this witness, and just as counsel for the defense began their cross-examination, the court discovered and announced the absence of the accused, suspended further proceedings, withdrew the testimony of the witness from the consideration of the jury, and adjourned the court. More than one important fact was elicited from this witness, and he was not recalled during the further progress of the trial. This is urged as being fatal to the conviction. The question of waiver by defendant is not in this case, and a discussion of that matter is pretermitted.
It is declared by the Bill of Rights, that the accused "shall be confronted with the witnesses against him." Const., art. 1, sec. 10. It is also provided by law, that "The defendant upon a trial shall be confronted with the witnesses." Code Crim. Proc., art. 25. And it is expressly enacted by the statute, that "In all prosecutions for felonies, the defendant must be personally present on the trial." Code Crim. Proc., art. 596.
After the accused is placed upon his trial, every step taken to secure his conviction should be in conformity with the statutes, and he must be present during the entire trial, unless he waive his presence. Code Crim. Proc., arts. 695-698, 701; authorities above cited, also. Every right guaranteed him under the provisions above cited should be strictly observed, for these rights are the safeguards of the citizen, and beyond the power of the courts to disregard or ignore. The power to disregard one implies the power to ignore all. He can not be deprived of these rights without his consent, had in a proper way, and the court should see to it that these provisions of law are not violated during trials had before them. Massey v. The State, 31 Tex.Crim. Rep.[31 Tex. Crim. 371]. They insure the presence of the accused during his trial, at every stage of it, and are essential to the due administration of justice, to the end that he may obtain a fair and impartial trial.
There is but one safe guide in such matters, and that is a strict obedience to and conformity with the Statutes and Constitution. It is not always requisite to inquire whether harm has been done or injury inflicted by a violation of the provisions of law in this regard. The mere fact that the peremptory demands of the Constitution and statutes have been violated is sufficient injury. The withdrawal of the evidence did not reach the error occurring in this case. Authorities above cited; Massey v. The State, 31 Tex. Crim. 371 [31 Tex. Crim. 371]; The State v. Greer, 22 W. Va. 800; 9 Am. and Eng. Encyel. of Law, 657, "Homicide;" Lewis v. United States, 146 U.S. 370.
The clothing worn by the deceased at the time of the homicide was delivered to and carried by the jury with them in their retirement to consider of their verdict. No objection was urged to this at the time, but it was made a ground of the motion for a new trial. The clothing was introduced in evidence, and was thoroughly examined during the trial, *Page 441 and the witnesses were rigidly questioned in regard to same, and as to everything connected therewith pertaining to the case. It is not contended that the jury made discovery of any testimony or fact from an inspection of the clothing not already known by them and ascertained during the trial, or that they received any additional evidence thereby. In order to authorize the award of a new trial on this ground, it must be made to appear that the jury received testimony therefrom other than that adduced on the trial.
By article 777 of the Code of Criminal Procedure, it is provided, that "new trials, in cases of felony, shall be granted for the following causes, and for no other: * * * 7. Where the jury, after having retired to deliberate upon a case, have received other testimony."
Not only so, but the testimony received must be prejudicial to the accused in its tendency, and calculated to influence the jury adversely to him in finding their verdict. Had this been shown, this court would then be authorized to review that issue, in the light of the case made upon the trial of the motion. As it is made to appear to us, we find no error in this matter.
In so far as Bouldin's case, 8 Texas Criminal Appeals, 332, conflicts with this opinion, it is overruled.
It is insisted, that the evidence does not support the conviction; but in view of the fact that another trial will be had, we refrain from giving our views in regard to that question. The remaining questions presented in appellant's brief are not likely to arise upon another trial, hence they are not discussed.
For the error indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.
Judges all present and concurring.