
    FRENCH v. STATE.
    (No. 7853.)
    (Court of Criminal Appeals of Texas.
    April 15, 1925.
    Rehearing Denied May 20, 1925.)
    1. Criminal law <&wkey;597(l) — Not error to deny continuance, wherei testimony of absent witness is improbable.
    If testimony of absent character witness is entirely improbable, it is not error to deny continuance for purpose of procuring testimony of such witness.
    , On Motion for Rehearing.
    2. Criminal law <&wkey;9l8(9) — ¡Voluntary absence of accused from courtroom not ground for new trial.
    It is not ground for new trial, under Code Cr. Proc. 1911, art. 837, that accused, who was on bond, voluntarily absented himself from courtroom while his attorney was arguing a motion, where he did not show that absence was without counsel’s or court’s consent, and he waited until after rendition of verdict against him before making objection.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Tas French was, convicted of keeping and being interested in keeping premises for use in storing and manufacturing intoxicating liquor and he appeals.
    Affirmed.
    J. F. Hair, of San Antonio, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, -for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Travis comty of keeping and being interested in keeping bis premises for use in storing and manufacturing intoxicating liquor, and bis punishment fixed at two years in tbe penitentiary.

Tbis is a companion case to cause No. 7851, Tas French v. State, original opinion November 19, 1924, motion for rebearing overruled January 14, 1925, 267 S. W. 494, and most of tbe questions raised bere were decided adversely to appellant’s contention in tbe opinion in that case.

Tbe indictment was attacked in this case for the same reasons advanced in tbe companion case referred to, and the-jury wheel law by means of which the panel of tbe jury were selected was also attacked.

Appellant sought a continuance on account of tbe absence of. certain character witnesses and one Dolon Menefee. Tbe record so clearly manifests tbe entire improbability of tbe truth of tbe testimony stated as expected from said absent witness that no eiror is manifested in the court’s action in regard to tbe overruling of the continuance or tbe motion for new trial based in part on the refusal of said continuance. Appellant sought a severance, but tbe facts stated are not deemed by us to entitle him to tbe same.

Officers conducted a raid upon tbe prémises of appellant, and, found two stills, giving every evidence of use, and in tbe bouse, barns, outhouses,' blacksmith shop, ben nests, prickly pear bushes, and other places around tbe premises • found large' quantities of whisky. While they were at tbe house appellant appeared. Appellant’s statements in regard to tbe making of whisky were given in testt-mony by persons other than the-officers. Tbe evidence is deemed amply sufficient to support tbe judgment.

Some objections were made during .the trial, but we have been unable to perceive error in any of .the matters complained of. A very voluminous and lengthy motion for new trial was made, and complaint was there -presented of misconduct of tbe jury, but tbe court heard evidence regarding each question raised in the motion, and these matters have been considered by us and are not deemed of sufficient interest to set out at length. We have concluded no error appears in any of same.

Tbe record is very voluminous, much of same consisting of the presentation of tbe .same question from different angles and tbe •repetition of things, such as lengthy motions -to sever, to continue, to quash indictments, and other parts of the record in such intricate manner as to cause tbe court needless trouble in trying to comprehend the various questions presented.

There is no brief on file for tbe appellant, and as best we can we have examined and digested tbe various propositions, and finding no error in the record, tbe judgment will be affirmed.

On Motion for Rehearing.

Appellant urges that he be granted h rehearing because of bis having absented himself from tbe courtroom for a short time while certain motions made by bis attorney were being argued. Tbe matter was presented to the court for tbe first time in appellant’s motion for new trial, and was not discussed by us in our formen opinion at any length. Our statute, article 837, C. C. P., sets out the grounds uponjjvhich a new trial shall be granted. We fina nothing therein nor in any decision by this court holding that one who is upon bond during his trial and who voluntarily absents himself from the courtroom while his attorney is arguing a motion, and who in no wise makes known the fact of his absence to the court during the trial, and who does pot show that such absence was without the consent of his counsel or the court, and who waits until after the conclusion of the court and the rendition of a verdict against him, can then thereafter successfully seek in motion for new trial to take, advantage of his own act. For this court to lay down any such doctrine would be to invite efforts on the part of men charged with crime, who are on bond, to absent themselves from courtrooms without the knowledge of the court, and after failing to give the trial judge an opportunity to. again go over the matters, if any, which had taken place during the absence of the defendant, and thus obviate any possibility of injury, and then by showing upon motion for new trial the fact of such absence, undo the result obtained, no matter how much expensd and loss to the state. We do not believe such proposition to be sound, and decline to announce it as the law. At the time our statute which requires the accused to be present in court during his trial was passed it was the law of this state that when the trial began, if the accused was on bond, his bond became at once functus officio, and he was thereafter in custody of the sheriff as much as if he had never been on bond. It would be manifestly wrong in principle and in any application to permit the state to take charge and custody of one accused of crime and then deprive him of the power of being present when any step was taken in his said trial. The statute in question was not passed for the purpose of enabling parties accused of crime to use it as a means of evading the consequences of trials or of delaying justice. Since the passage of the statute above referred to, our merciful law has been changed so as to enable persons charged with crime and on bond at the time their cases are called for trial to remain under the bond during the trial and until its conclusion. They, are no longer taken charge of and kept in custody by the sheriff until after th§ trial, but are free to go when and where they please until a jury’s verdict is rendered against them. According to the testimony offered by appellant in this case, it shows that he voluntarily left the courtroom and went about his business and returned' when he got ready, and that when he walked into the courtroom his attorney was presenting some dilatory motions. Neither appellant nor his attorney communicated to the court in any way the fact that appellant had not been present during all of the time, - and there is no showing that the fact of his failure to be there was observed or was known to any officer of the court.

Being of opinion that the motion is without merit, same will be overruled. 
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