Speegle v. State

278 S.W. 437, 102 Tex. Crim. 498, 1925 Tex. Crim. App. LEXIS 1198

• Court: Court of Criminal Appeals of Texas
• Decided: June 3, 1925
• Docket: No. 9176.
• Status: Published

Opinions

HAWKINS, Judge.

Appellant entered a plea of guilty to manufacturing intoxicating liquor, and asked for a suspended sentence. After hearing the evidence the jury fixed his punishment at one year in the penitentiary, declining to recommend a suspension of .the sentence.

Appellant was on bail. After the jury retired to deliberate, appellant left the court room and went on the lawn. The jury came back into the court room in a short time, and the trial judge, thinking they were ready to report, had the sheriff call appellant. When the papers were handed the judge, he discovered the purported verdict was not in proper form or was incomplete in some particulars. He sent the jury back to formulate the verdict as directed in the charge. The judge thought appellant was in the court room, but in fact he arrived just as the jury was starting back to the jury room. The jury was not in the court room more than two minutes. He was present when they returned a few minutes later and the verdict was received.

It is urged that because appellant was not present when the matters just related transpired, he is entitled to a new trial in view of Article 646, Code of Crim. Procedure, which reads:

“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.”

In 1907, the article in question was amended by adding the following:

“* * * provided, that in all cases the verdict of the jury shall be received by the court and entered upon the records thereof in the absence of the defendant, when such absence on his part is wilful or voluntary, and when so received it shall have the same force and effect as if received and entered in the presence of such defendant; and 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.”

The revisers of 1911 overlooked the amending act, and carried Art. 646 into the revision as first quoted. However, under the authority of Berry v. State, 69 Tex. Crim. Rep. 602, 156 S. W. Rep. 626; Stevens v. State, 70 Tex. Crim. Rep. 565, 159 S. W. Rep. 505, the new provision seems to be the existing law. We mention this only in passing. Appellant was present when the verdict was received by the court. In our opinion the incident complained of cannot be made the basis of a reversal. It is not shown from the bill that any harm did, or could have, come to appellant from the matter transpiring in his absence. In our judgment, the question is settled against appellant’s contention in Powers v. State, 28 Tex. Crim. App. 42, 5 S. W. Rep. 153, in an opinion written by Judge White, and whose language is quoted with approval in Cartwright v. State, 97 Tex. Crim. Rep. 230, 259 S. W. Rep. 1085.

The judgment is affirmed.

Affirmed.