Wilson v. State , 87 Ga. 583 ( 1891 )

Bleckley, Chief Justice.

The sixth ground of the motion for a new trial complains that the court recharged the jury without notifying defendant and in his absence, although his counsel was present. It .appears from the record that the j udge did not know whether the accused was present in the court-room or not when the recharge was delivered, and that the fact was that he was in an adjoining room in the custody of an officer, not knowing that the jury was being recharged, and knowledge did not come to him until after the recharge was concluded. Whether his absence from the room was voluntary or by compulsion, we think the court should not have recharged the jury in his absence. He was in the custody of an officer, and whether the officer took him to the adjoining room with or without his consent, it seems to us, made no difference. There is nothing to indicate that it was his intention to be absent when any material step was to be taken in the trial; and before taking such a material step as reehargiug the jury, we are of opinion that the court should have seen and known that he was present, verifying the fact, if necessary, by ocular demonstration. The presence of the' counsel was no substitute for that of the man on trial. Both should have been present. Bonner v. State, 67 Ga. 510 ; Wade v. State, 12 Ga. 25 ; Martin v. State, 51 Ga. 567.

There was error in not granting a new trial on this ground of the motion. Judgment reversed.