The opinion
DAVIDSON, Presiding Judge
(dissenting).—1. The court absented himself during the trial and went away to his office and out of the courtroom, he states, to write his charge. There came up some question between the attorneys in his absence and they sent for him to settle it. Defendant’s counsel then informed the court that he would not further agree to his absence from the courtroom during the trial, but the court replied, “You have already agreed to it now and I am going to hold you to it,” and went away. It appears from the record that the court was not present any more during the trial of the case. I refer to Judge Prendergast’s opinion for a more complete statement of the matters connected with this transaction. This was not a mere casual absence on account of some matter of urgency but was a deliberate abandonment of the trial and an intentional absence from the courtroom. This was not a court during the absence of the judge within the meaning of the law. Our Constitution provides for and demands that trials be had before a court and not before counsel in the absence of the court. Here the judge abandoned and dissolved the court. There was no presiding officer, only counsel present before the jury wrangling over questions before that jury as to what was or was not testified by witnesses. This, to say the least, is a novel -way of holding courts of justice and trying men for life or liberty. My brother Prendergast meets this by stating that “the bill does not show that the appellant was in any way injured. Besides this, the statement of facts, without contradiction, and by the appellant’s own testimony was that he was guilty beyond the shadow of a doubt and he could not have been injured by the court’s temporary absence as shown. The jury gave him the lowest penalty under the law.” If this be correct, then if the statement "of facts should show a party guilty he could not complain even though he was tried in the absence of the
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judge or out of the courtroom without a presiding judge. I had thought that our Constitution and laws were enacted to the end that an accused person should be tried before a court presided over by a judge however guilty he may be. This was such error as ought to require a reversal of this judgment. Bateson v. State, 46 Texas Crim. Rep., 34 ; 47 Texas Crim. Rep., 476 ; 47 Texas Crim. Rep., 388 ; 47 Texas Crim. Rep., 566 ; 50 Texas Crim. Rep., 134 ; 51 Texas Crim. Rep., 361 ; 117 S. W. Rep., 848 . In 17 Vol. Am. & Eng. Ency. of Law, page 721, I find this: “It has been held that where counsel are sent out of the courtroom to argue the cause to the jury out of the presence of the judge before whom the cause was tried, if improper remarks are made to the jury or either side calculated to prejudice the jury, a new trial should be granted on the application of the party aggrieved, unless it clearly appears that no evil result was produced by these remarks; and' the fact that the party aggrieved consented to argue the cause out of the court’s presence when requested to do so by the judge trying the cause, does not constitute a waiver of his right • to have the argument of the cause conducted in the presence of the court, his consent being practically extorted in such case,” citing Brownlee v. Hewitt, 1 Mo. App., 360 . See also State v. Claudius, 1 Mo. App., 551 . This quotation is directly in point. The difference between the cases in the excerpt and the case made by this record is that' in the excerpt the lawyers were sent out of the courtroom to argue the case to the jury, where in the case in hand the court sent himself out and down into his office and was absent during the argument, and refused to stay and hear the case.
2. The constitutionality of the Act of the Legislature under which this proceeding was instituted is attacked. The majority opinion passes this without notice as being too insignificant to attract attention. The far reaching consequences of this Act and its unconstitutionality to my mind is of great importance, and appellant’s contention should . have been sustained. The Act in question is found on pages 33 and 34 of the Third Called Session of the Thirty-First' Legislature. It provides certain stipulations in regard to shipping through the express companies intoxicating liquors. After setting out the various matters, which are unnecessary here to mention or notice, this is found in section 1 of the Act: “Any agent of such express company, railroad company or other common carrier having the custody of any book or books required by this Act of such express company, railroad company or other common carrier to be kept, shall at the request of any person at any reasonable time during office hours produce such book or books for inspection by any officer of the law or any member of the grand jury.” It then provides a heavy punishment from twenty-five to one hundred dollars, and imprisonment in the county jail. This Act authorizes the indiscriminate overhauling, investigation and inspection of all the books of express companies and other common carriers at the whim, caprice or curiosity of the party requesting the officer to look
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into the books. This is such a direct disregard of the rights of our people, their business interests and concerns, and the citizenship of this State that it ought not to be for a moment entertained or sustained. Books of express companies doubtless may be brought into court or investigated in a proper manner and at a proper time under order or direction of the coúrt when it becomes necessary to the ends of public justice or the enforcement of public or private rights, but the law points out how such matters shall be done. It was never intended but prohibited by the Constitution, as I understand it, that the business matters of the citizenship of this country—whether corporate or individual—should be placed at the whim and caprice of curiosity seekers. This investigation can only be had when it becomes a matter of public concern or in aid of private rights, and then under such safeguards as will not violate the Constitution.with reference to the seizure of property and due process of law. The property of the citizenship of this country may not be seized or taken except by due process of law, and that law provides that the seizure shall not take place except under the solemnity of legal safeguards. I do not' care to enter into further discussion of this matter. The question here raised was so thoroughly and exhaustively discussed and so ably decided in an opinion by Judge McCord in Ex parte Gould, 60 Texas Crim. Rep., 442 , that I deem it unnecessary to undertake to add to what was there said. I do not feel that anything I could say would strengthen that opinion. I also refer to Ex parte Conrades, 85 S. W. Rep., 150 ; the same case, 185 Mo., 411 ; State ex rel v. Ryan, 182 Mo., 349 .
3. There are several other questions in the case in my judgment which urgently demand a reversal of the judgment, but I deem it hardly necessary to enter into a discussion of them. However, I will state this: that when the sheriff of Montague County, who was denied the right or privilege of investigating the books by appellant, called upon appellant in regard to the matter, he was informed by appellant that he had instructions not to let anyone look at the books, and he was only treating the sheriff as he did the others. The sheriff went away. The next day appellant wrote a letter to the county attorney, who was with the sheriff, to the effect that he had been told by the •depot agent of the Bock Island Bailway Company that under the last Act of the Legislature an officer had a right to look at his books and that, therefore he would let the officer go over the books. The county attorney took the stand and testified that he received this letter. The letter was then offered in evidence, but was rejected. I am of opinion that this letter ought to have gone to the jury.
4. It is also contended that the information and complaint are insufficient in that they fail to allege that the call of the officer to inspect the books was at a reasonable time and during business hours. My brethren hold this contention has no merit. I think it has. The allegation in the information and complaint was that the sheriff called about three o’clock p. m. There is nothing to indicate in the face of
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the pleadings by averment that this was a reasonable time in business hours. I do not care to enter into a discussion of this matter at any length.
5. Another question I desire to notice without going into any lengthy discussion, is this conviction ought not to have been had. Appellant was the agent of the express company. The officer called upon him. He informed the officer that he had instructions not to let anyone examine the hooks unless they had an order from the court. The sheriff went away. The next day appellant informed the county attorney who was with the sheriff at the time they called at the express office, that under further instructions he would let them inspect the books. I do not believe that this state of case justifies this conviction, even if the law is valid. The depot agent, in my judgment, stated the law and the rights of his company correctly in refusing the sheriff an inspection without an order of court. I am not here stating what the order should be or how it should be executed. I merely mean proper legal authority. It is clear that appellant had no intention to violate any law, and that he really did not violate any law from either standpoint above mentioned. It was not a permanent refusal. He had one view of the matter and the sheriff seems to have had another. When he concluded the sheriff was right he at once notified the county attorney that the books were open to the officers. Under this state of case this is a harsh and unjustifiable conviction even if the law was valid. But I am of opinion the appellant was right. Ex parte Gould, supra.
For the reasons above stated I therefore enter my dissent.