In his motion for rehearing appellant insists again that the reception of part of the evidence of Sheriff Craig in the absence of the accused, should be held reversible error. The facts appear to be that when the court adjourned at noon he adjourned to meet at 1:30 o'clock P.M., and apparently when that hour was reached proceedings in the trial were resumed, and the witness Craig was called to the stand and asked and answered several questions pertaining to certain jars then in the presence of the jury. Some one called attention to the fact that appellant was not present and the proceedings were halted, and in a few moments he came in. Thereupon the identical evidence given during his absence, was introduced from said witness Craig, and appellant through his counsel cross-examined said witness at length. Appellant's counsel appears to have been present all the time. The matter was complained of in appellant's motion for new trial, and a bill of exceptions was taken to the refusal of the new trial upon this ground. Reliance is now had upon Hill v. State, 54 Tex. Crim. 646, and Bell v. State, 32 Tex.Crim. Rep.. Appellant refers to the Cason case, cited in our original opinion, and calls attention to the fact that after the rendition of the opinion in the Cason case and before the Hill case was handed down, the Thirtieth Legislature passed an Act requiring the personal presence of the accused in a felony case at the trial. This part of the Act mentioned has been the law of this State for many years prior to the rendition of the Cason case. Acts 1895, Art. 596, White's Ann. C.P., *Page 174 Art. 633. We are in accord with both the Hill and Bell cases on their facts. In the Hill case certain evidence of witnesses was reproduced at the request of the jury and while the defendant was absent, his presence having been expressly waived by his attorneys. This court has held in numerous cases that the presence of the accused, which is specifically required by the statute in such case, see Articles 755-756, Vernon's Crim Proc., cannot be waived by the attorneys for the accused. Shipp v. State, 11 Texas Crim. App., 46; Mapes v. State, 13 Texas Crim. App., 85; Granger v. State, 11 Texas Crim. App., 454. The error of the court in the Hill case was not the result of inadvertence or lack of knowledge of the absence of the accused, but was the intentional and deliberate act of the court and counsel for the defendant. In the Bell case, supra, the accused was not on bond but was in the custody of the sheriff and was carried by the officers from the courtroom, and during his absence material testimony was introduced and the accused was at no time confronted with said witnesses as required by our Constitution, and was given no opportunity to examine such witnesses, and the testimony was at no time reproduced or offered in the presence of the defendant. The statutory requirement that the accused be present at the trial, in cases in which it is apparent that no possible injury could have resulted to the accused, has never been given an ironclad construction by this court. In O'Toole v. State, 40 Tex.Crim. Rep., the accused was absent from the courtroom while the jury were being impaneled, sworn and the indictment read to them. His absence seemed to have been without the knowledge of the court. Upon his return the trial court asked him if he waived the going over of the proceedings had in his absence and he answered that he did. This court, through Judge Henderson, held that if appellant had refused to agree to such waiver the court could have immediately rectified the matter, — by which we take this court to mean that the trial court would have proceeded to have the indictment reread and the jury sworn, etc. Notwithstanding the proceedings that were had out of the presence of the accused, this court held no error shown, and the cause was affirmed. In Killman's case, 53 Tex.Crim. Rep., this court, through Judge Davidson, held that the voluntary retirement of the accused from the courtroom for five or six minutes during the argument, would not vitiate the conviction. True, the case was a misdemeanor, but one in which the punishment was by imprisonment and it thus comes within the rule. In Whitehead v. State, 66 Tex.Crim. Rep., 147 S.W. Rep., 583, the accused absented himself from the courtroom during argument from three to ten minutes in a felony case. This court held it no cause for reversal and discussed at length many authorities. In Fry's case, 78 Tex.Crim. Rep., the accused was on bond and shown not to have been present at an extended colloquy between the trial judge and the jury. In passing upon his contention that what was done in his absence was error, this court held that being on bond it *Page 175 was the duty of the appellant to remain in attendance on the court while the jury were out considering his case, and having absented himself, and it appearing that the matters that transpired in his absence were not such as could have injured him, no reversible error was shown. In many cases cited and discussed in the American English Annotated Cases, 1913C, p. 1147 note, in most of which the doctrine seems to be adhered to that where the accused is on bond, bound by the terms of such bail to be before the court, if he chooses to absent himself during part of the trial, unless it be of some particular hurt and violative of some special statute, he has no cause for complaint. We are not now called upon to decide that question but content ourselves with saying that on the facts in the instant case we are of opinion that the accused was confronted with the witnesses against him and given every opportunity to cross-examine and preserve any rights due him, and that he was present at his trial within the contemplation of our statute.
The motion for rehearing is overruled.
Overruled.