The offense is assault with intent to rape; the punishment two years.
Our able state’s attorney has confessed error herein. By Bill of Exception No. 2 it is shown that the appellant was not present when his motion for new trial was overruled, that he was in jail, and that he did not waive his right to be present at the proceedings. His presence is requisite under such circumstances. Article 580, V.A.C.C.P.; Henderson v. State, 137 Tex. Cr. Rep. 18, 127 S. W. 2d 902; Manual of Reversible Errors in in Texas Criminal Cases, Sec. 362, p. 350.
The trial court attempted to qualify the bill, but an exception to such qualification was reserved over the judge’s signature which destroyed the qualification, and we are bound by the bill as originally submitted. Lovett v. State, 154 Tex. Cr. Rep. 483, 228 S. W. 2d 855, and Palmer v. State, 154 Tex. Cr. Rep. 251, 226 S.W. 2d 634.
Because of the error reflected by the bill, the judgment is reversed and the cause remanded.