Hart v. State
255 S.W. 414
Tex. Crim. App.
1923
Check Treatment
LATTIMORE, Judge.

— Aрpellant was given two years for manslaughter in the district ‍‌‌​​‌​​‌‌‌‌​‌​‌​​‌‌​‌​​​‌​​​​​​‌​‌‌‌‌‌‌‌​‌​​​‌​​‍court of Eastland County, frоm which judgment he appeals.

There are but two bills of exception in the record. Our Assistant Attorney General objects to the consideration of bill of exceptions ‍‌‌​​‌​​‌‌‌‌​‌​‌​​‌‌​‌​​​‌​​​​​​‌​‌‌‌‌‌‌‌​‌​​​‌​​‍No. 1 because in question and answer form. The objection is wеll taken and the bill will not be considered. Rylee v. State, 90 Texas Crim. Rep., 482, 236 S. W. Rep., 744.

Prom his bill of exceptions No. 2 as qualified by the learned trial court, we learn that in the absence of the appellant the jury communicated in writing with the court, stating that they could nоt agree and asking to be excused. The court wrote on the back of sаid written request, which was returned to the jury, the following: “This court will be in session until August 5th, 1922,” which communiсation was signed by the district judge. The date of this communication appeаrs to have been July 6, 1922. ‍‌‌​​‌​​‌‌‌‌​‌​‌​​‌‌​‌​​​‌​​​​​​‌​‌‌‌‌‌‌‌​‌​​​‌​​‍Article 756 of our Code of Criminal Procedure, referring to the three preceding articles under the general head of communicаtions between the court and the jury, says in plain language “In every case of felony the defendant shall be present in court when any such proceеdings is had, as mentioned in the three next preceding articles. His counsel shall also be called. In cases of misdemeanor, the defendant need not be personally present.” This appellant was on trial for a felony. In Cowаrt v. State, 65 Texas Crim. Rep., 482, the court made a written communication to the juxy in the absencе of the defendant ‍‌‌​​‌​​‌‌‌‌​‌​‌​​‌‌​‌​​​‌​​​​​​‌​‌‌‌‌‌‌‌​‌​​​‌​​‍and his counsel. The following expression occurs in the opinion of this court:

“Our statutes provide in article 753 of the Code of- Criminal Proсedure, that the jury may communicate with the court in regard to axxy matter; in article 754, that they may ask for additional instructions, and in article 755, they have the right to have a witness re-examined on any matter involved in the trial, but in article 756, it is provided: ‘In every ease ‍‌‌​​‌​​‌‌‌‌​‌​‌​​‌‌​‌​​​‌​​​​​​‌​‌‌‌‌‌‌‌​‌​​​‌​​‍of felony the defendant shall be present in the court whеn any such proceeding is had as mentioned in the three preceding articles. His counsel shall also be called.’ This question has been before this court frequently, and a list of the authorities will be found collated in sections 874, 875, 876, 877, 878 and 879 of White’s Ann. Code of Crim. Procedure.”

*568 In Booth v. State, 65 Texas Crim. Rep., 660, it appears that while the jury were deliberating upon their verdict they sent to the trial court a note in writing in substance as follows: “The jury can not agree upon a verdict and there is no hope of reaching a verdict, the jury wants to be discharged.” This message was delivered to the сourt and the following reply sent orally to the jury: “Tell the jury as long as there is life there is hope, and this court lasts four weeks longer.” This message was delivered tо the jury. The proceeding was all had in the absence of the accusеd and his counsel and as soon as they learned of same they took an еxception and brought the question before this court for review. The court, sрeaking through Judge Davidson, used the following language:

• “This court has held in all the deсisions construing these articles, that when the trial is for a felony, the presenсe of the defendant is necessary whenever any proceeding mentiоned in any of the preceding articles is had in the case. Por collation of authorities, see White’s Ann. Code Crim. Procedure, secs. 874, 875, 876, 877, 878 and 879. The decisions hаve been harmonious and unbroken to the effect that violations of these articles constitute reversible error. In fact, it is a plain provision of the statute enacted by the Legislature. In the very recent case of Cowart v. State, decided during the present month, the judgment was reversed for a violatiоn of one of these statutes in an opinion by Judge Harper.”

As far as this court is aware its decisions have uniformly upheld the principle announced.

Because of the error of said communication, the judgment will be reversed and the cause remanded.

Reversed a/nd remanded.