Thе appellant was convicted for perjury, his punishment being assessed at two years confinement in the penitentiary.
The facts show that appellant was a witness in the case of Thompson v. State, who, during his trial for the crime of rape, used the defendant as a witness, who testified to certain facts upon which the perjury alleged in the indictment is based. Appellant’s contention is that he is not guilty of perjury, conceding his testimony to be falsе. The facts show that Thompson, defendant in the rape case, was on bail; that during the trial and after the
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first witness for the State had testified, Thompson absented himself from the court, was not thereafter present during the trial, and was absent at the time appellant in this case testified. In other words, Thompson was present during the trial up to and including the time covered by the testimony from the first witness for the State; that he then left the court, was not present during any stage of the further progress of the trial, and that during his absence appellant in this case testified and the trial of Thompson proceedеd to its close during the absence of Thompson. Under this state of facts it is contended by appellant the crime of perjury could not be cоmmitted. The Constitution, article 1, section 10, provides that the accused shall be confronted by the witnesses. Article 633, White’s Code Criminal Procedure, thus 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.” The cases are entirely harmonious to the effect that evidence can not be introduced in the absence of the accused. Bell v. State,
32
Texas Crim. Rep., 436; Hill v. State,
The judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.