
    FOREMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 21, 1910.)
    Ceiminal Law (§ 918) — Trial—Presence oe Accused.
    Where accused d.uring a recess of court retired to a room to await the resuming of the trial, expecting to be advised when the court would be ready to proceed, and while he was absent the state introduced material evidence, a new trial must be granted, under Code Cr. Proe. 1895, art. 633, providing that accused must be present during the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2168; Dec. Dig. § 918.]
    Appeal from District Court, Upshur County; W. R. Heath, Special Judge.
    Walter Foreman was convicted of perjury, and he appeals.
    Reversed and remanded.
    M. B. Briggs and Warren & Briggs, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAMSEY, J.

This appeal is prosecuted from a conviction had in the district court of Upshur county for the offense of perjury, in which appellant’s punishment was assessed at confinement in the penitentiary for a period of two years.

1 1. Among other grounds, upon which a reversal is sought is that the indictment on which the prosecution is predicated is invalid. A careful inspection of the indictment has convinced us that same is sufficient and charges an offense. Its length suggests the inadvisability of setting it out at length. It does not depart substantially from the usual precedents in such cases.

2. Among other grounds of the motion for a new trial it is alleged, in substance, that during the trial there was an intermission in the proceedings and a recess taken by the court. During said recess appellant retired to a room in the courthouse adjoining the courtroom and remained there some 30 or 40' minutes; that while there he was simply waiting until the proceedings of the court were resumed, expecting to be advised when the court was ready to proceed; that while in said room, and while the door was closed which connected said room with the courtroom, and while he was absent from the courtroom, and not in hearing or in view of the proceedings in the court, the state introduced one witness, who testified to the material facts in said cause, and that another witness had been introduced for the state and was proceeding with his testimony when appellant came into the court. This ground of the motion was contested by the state, and on this contest testimony was heard at considerable length. This testimony we have carefully reviewed. It is always embarrassing in respect to a difference of this kind for this court to be called on to ascertain the facts in the midst of so much conflict between counsel for the respective parties and the court. A careful reading, however, of this testimony, has convinced us that the motion for new trial should have been sustained, and that the ground alleged had been proven substantially to be true.

We cannot escape the conviction that the testimony of appellant <5n this issue is so affirmative, direct, detailed, and circumstantial as to make it impossible, practically, for appellant’s witnesses to have been mistaken in respect to the fact urged; whereas, the testimony for the state was largely negative, and for the most part was to the effect that the witnesses had not noticed appellant’s absence. Article 633 of the Code of Criminal Procedure of 1895 is as follows: “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.” As said in the case of Emery v. State, 57 Tex. Cr. R. 423, 123 S. W. 133, the cases are entirely harmonious to the effect that evidence cannot be introduced in the absence of the accused. Bell v. State, 32 Tex. Cr. R. 436, 24 S. W. 418; Hill v. State, 54 Tex. Cr. R. 646, 114 S. W. 117. We can well understand that in view of our present statute, under which, pending the trial, appellant may remain at large, practical difficulties may arise upon the trial, in view of the bail statute and the statute above quoted. These difficulties, however, may ordinarily be overcome by a careful and diligent enforcement of the rule requiring the defendant’s presence on the trial. As presented, we do not feel that we would be justified, under the statute and under the testimony, in sustaining this conviction.

The other matters contained in the motion for new trial need not be discussed, as, for the most part, they are not likely to occur upon another trial.

For the error pointed out, the judgment will be reversed, and the cause remanded.

McCORD, J., absent.  