Bell v. State (32 Tex. Crim. 436, 1893)

DAVIDSON, Judge.

A conviction of murder in the second degree was the result of this trial in the court below, the punishment being assessed at thirty years in the penitentiary.

At about half-past 5 o’clock in the evening, the court announced that a recess would be taken until 7. The defendant was conveyed from the court room to the jail. Counsel for the prosecution announced they desired to examine another witness, then in the court room, which would close the State’s case. After the State had concluded the examination of this witness, and just as counsel for the defense began their cross-examination, the court discovered and announced the absence of the accused, suspended further proceedings, withdrew the testimony of the witness from the consideration of the jury, and adjourned the court. More than one important fact was elicited from this witness, and he was not recalled during the further progress of the trial. This is urged as being fatal to the conviction. The question of waiver by defendant is not in this 'case, and a discussion of that matter is pretermitted.

It is declared by the Bill of Rights, that the accused ‘ ‘ shall be confronted with the witnesses against him.” Const., art. 1, sec. 10. It is also provided bylaw, that “ The defendant upon a trial shall be confronted with the witnesses.” Code Crim. Proc., art. 25. And it is expressly enacted by the statute, that “ In all prosecutions for felonies, the defendant must be personally present on the trial.” Code Crim. Proc., art. 596.

After the accused is placed upon his trial, every step taken to secure his conviction should be in conformity with the statutes, and he must be present during the entire trial, unless he waive his presence. Code Crim. Proc., arts. 695-698, 701; authorities above cited, also. Every right guaranteed him under the provisions above cited should be strictly observed, for these rights are the safeguards of the citizen, and beyond the power of the courts to disregard or ignore. The power to disregard one implies the power to ignore all. He can not be deprived of these rights without his consent, had in a proper way, and the court should see to it that these provisions of law are not violated during trials had before them. Massey v. The State, 31 Texas Cr. Rep., 371. They insure the presence of the accused during his trial, at every stage of it, and are essential to the due administration of justice, to the end that he may obtain a fair and impartial trial.

There is but one safe guide in such matters, and that is a strict obedience to and conformity with the statutes and Constitution. It is not always requisite to inquire whether harm has been done or injury inflicted by a violation of the provisions of law in this regard. The mere fact that the peremptory demands of the Constitution and statutes have been violated is sufficient injury. The withdrawal