The State presents a motion for rehearing insisting that under the recitals in the bystanders' bill the absence of appellant during the argument on the motion for a peremptory instruction should be regarded as a "voluntary" absenting of himself on the part of appellant.
Article 582 Cow. C. P. reads in part as follows: "Where the accused is on bail when the trial commences, such bail shall not thereby be considered as discharged until the jury shall return into court a verdict of guilty or not guilty. He shall have the same right to have and remain on bail during the trial of his case and up to the return into court of such verdict as under the law he has before the trial commences; but immediately upon the return into court of a verdict of guilty, he shall be placed in the custody of the sheriff, and his bail considered discharged. * *"
If appellant had been on bail and walked out of the court room during the trial it would have fallen under a voluntary absence as held in Ballou v. State, 113 Tex.Crim. R.,22 S.W.2d 666, and the cases therein cited. See also Whitehead v. State, 66 Tex.Crim. R., 147 S.W. 583. The recitals in the bill negative the idea that appellant was on bail. They show that he was under the control of the sheriff who would not take *Page 143 appellant out of the court room without getting the consent of the trial judge. The absence or presence of appellant was not within his control.
The State's motion for rehearing is overruled.