Our former opinion on motion for rehearing is withdrawn and the following is substituted in lieu thereof:
In our original opinion, certain of appellant's bills of exception were overruled without discussion, one of these being Bill of Exception No. 7, which reads as follows:
"BE IT REMEMBERED that upon the trial of the above entitled and numbered cause, the defendant Bill Skinner was convicted of the offense of selling an alcoholic beverage containing alcohol in excess of four per cent by weight and his punishment at 25 *Page 25 days in jail, and the defendant filed a motion for a new trial as fully set out in the foregoing transcript within the time prescribed by law and presented the same to the presiding judge to be set for hearing, whereupon the presiding judge overruled said motion in the absence of the defendant and without giving the defendant an opportunity to offer proof of the allegations set out in said Motion for a new trial and gave as his grounds therefor that he was not overruling the motion for a new trial because of a personal matter but that this case had already cost the county so much money, and if the defendant wasn't satisfied he had other recourses, to which judgment and ruling of the Court the defendant by and through his attorney excepted and tenders this his bill of exceptions, and asks that the same be signed and filed as a part of the record in this case."
This bill of exception was treated by us originally as complaining only of the trial court's action in overruling the motion for new trial. Under the authority of Jenkins v. State,60 S.W.2d 1040, 124 Tex.Crim. R., a bill of exception complaining merely of the overruling of the motion for new trial presents nothing for review. Our attention was not, however, specifically directed to that part of the bill of exception which says: "whereupon the presiding judge overruled said motion in the absence of the defendant and without giving the defendant an opportunity to offer proof of the allegations set out in said Motion for a new trial ______________________ _____________________________________________________________ ____________________________________________________________." The trial court's approval of this bill of exception without qualification constitutes a certificate by him of the correctness of the language quoted.
So, the question is directly presented as to whether the trial court was authorized to overrule appellant's motion for a new trial in his absence and without giving him an opportunity to be heard.
In this case, the penalty imposed upon appellant being imprisonment in the county jail, brings it within the provisions of Art. 580, C. C. P., which reads as follows:
"In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part *Page 26 thereof is imprisonment in jail. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial."
Under this Article, the action of the trial court in overruling appellant's motion for new trial in his absence was error. Sweat v. State, 4 Tex. App. 617[4 Tex. Crim. 617]; 12 Tex. Jur., Secs. 214-217; Henderson v. State, 127 S.W.2d 902, 137 Tex. Crim. 18.
Appellant's motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.