
    BROOKS v. STATE.
    (No. 3668.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Criminal Law <&wkey;636 — Trial—Necessity oe Defendant’s Presence.
    Under Code Cr. Proc. 1911, art. 646, providing that in all prosecutions for felonies defendant must be personally present on the trial, and that he must likewise be present in all cases of indictment or information for misdemeanors, where the punishment or any part thereof is imprisonment in jail, where on a trial for a misdemeanor the jury, by the terms of the statute, assessed defendant’s punishment at six months in jail in addition to a fine, defendant’s absence from the courtroom while his counsel was arguing- a motion for an instructed verdict, in the absence of the jury, required a reversal; defendant having been locked in jail, and not voluntarily absent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1465 — 1482, 2120; Dec. Dig. &wkey;636.]
    Prendergast, P. J., dissenting.
    Appeal from Maverick County Court; Ben Y. King, Judge.
    Z. M. Brooks was convicted of an offense, and he appeals.
    Reversed and remanded.
    David E. Hume, of Eagle Pass, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted for soliciting and procuring Clara Brooks, a female, to be at a particular place, describing the place, for the purpose of meeting and having unlawful sexual intercourse with Percy Hamilton, a male person.

There was a square issue between the state and the defendant as to this matter on the facts. There is an issue presented by the record that defendant was absent during a part of the trial of his case. The facts in reference to this matter show that during the argument of defendant’s attorney for instructed verdict — that is, between the hours of 2 p. m. and 3 p. m. — the defendant was locked up in jail. As the deputy sheriff testified, he was “locked up good and tight in the county jail.” The jury went back into the courtroom at about 3 o’clock, ab'out the same time the officer brought in the defendant. About 1:55 p. m. defendant’s attorney submitted to the court a written motion for an instructed verdict, and began argument on said m'otion, which argument lasted about an hour, during which time neither the defendant nor the jury was present in the courtroom. As the defendant went in defendant’s attorney was just concluding his argument for an instructed verdict. Defendant’s attorney began said argument' about 2 o’clock. This is the agreed statement of facts approved by the county judge in regard t'o that matter. It is also stated in the general statement of facts, which was filed on April 13th, also made before the adjournment of court, that at 12:30 p. m. the court adjourned until 2 p. m., at which hour the defendant’s attorney began his argument for an instructed verdict, and concluded said argument at 3 p. m. At the conclusion of the argument the jur'ors and the defendant were brought into the courtroom. So the fact seems to be uncontroverted that defendant was locked up in jail, as the deputy sheriff said, “good and tight,” at the time his case was being argued to the court on the question 'of an instructed verdict in his favor. There was no question in this case like that in Killman v. State, 53 Tex. Cr. R. 570, 112 S. W. 92. In that case the defendant voluntarily absented himself under the circumstances detailed in that opinion, and it was held, under the circumstances of that ease, it was not reversible error, but in this case defendant’s absence was forced by being locked up by the deputy sheriff in the county jail.

The Revised Criminal Statutes 1911, art. 646, provide:

“In all prosecutions for felonies, the defendant must be personally present on the trial, and he must likewise be present in all cases of indictment or information for misdemeanors where the punishment or any part thereof is imprisonment in jail.”

Part of the punishment in this case is imprisonment. By the terms 'of the statute the verdict of the jury alloted defendant six months in the county jail in addition to a fine of $50. The Killman Case, supra, is not in point. The other authorities c'ollated under the statute, we think, are in point, and require a reversal of the judgment.

For this reason, the judgment will be reversed, and the cause remanded.

PRENDERGAST, P. J.

(dissenting). The agreed statement of facts shows that all that was done during appellant’s absence was that “at about 1:55 p. m. defendant’s attorney submitted to the court a written motion for an instructed verdict, and began argument on said motion, which argument lasted about an hour, during which time neither the defendant nor the jury were in the courtroom”' — simply that, and nothing more. No complaint of this was made at the time, and no objection thereto was made until after the trial in tiie motion for a new trial. This is a misdemeanor case. I think this was no such proceeding or part of the trial as the statute contemplates cannot be had in the defendant’s absence. No possible injury is shown or even claimed t'o him. It was too late to complain after the trial. 
      <§^?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     