dissenting. I dissent and state my reasons:
During the progress of the trial the defendant A. Irving Lowman left the court room while a prospective juror was being examined as to his qualifications, for the purpose of ascertaining something, if possible, concerning *32the juror who was being examined, and when he returned the examination had ceáséd. He was hbsent from five to ten minuses.
Floyd Braswell for personal reasons left the court room On several occasions; once while a State’s witness was being examined by the State’s attorney.
If there is any question that was supposed to bb s'ettled m tliiis State by early, well considered and kn unbroken line of ‘decisions, it is that “duíiiig tlié trial df a capital case (the whole trial), the jprisoiier has a right to be, 'and must he present — no step caii be taken by tlib coiirt in tlib trial df the caiise in his ábsenfcb.”
The earliest ease is that of Holton v. State, 2 Fla. 476, where there is a very full discussion of the.question. I quote in part from that decision. “While the justice of the rule here asserted is admitted, and an adherence tó its principles conceded, it is of equal importance that the rights of the accused should be protected and preserved, and the essential forms of law prescribed for the mode of conducting the ascertainment of his guilt should be carefully observed and followed. A departure from them could not fail to produce difficulties and doubts. A recognition of a departure in one case, might lead to the adoption of another; and finally, those barriers, which are guarantees for the regular and impartial conducting of criminal cases, might be frittered away, and possibly eventuate in gross injustice. It is much easier to require the observance of the mandates of the law, than to determine in what cases they may be safely dispensed with. It is, therefore, more proper and more consonant to reason and justice to require a substantial adherence, than to suffer innovations upon, the known and positive rules prescribed by law for the regular conducting of *33causes. The justice of these grounds is as clear and apparent as those which are founded on principles of humanity, by which the administration of criminal law has been marked, and which declare that the accused stands on all his rights, and waives nothing which is irregular, and more especially so where life is in the question.”
“Rut there was another very important, settled and well established principle of criminal láw violated, we think, by this proceeding; which is, that during the trial of a capital case (the whole trial) the prisoner has a right to he, am*d must he present — no step can be taken by the court in the trial of the cause in- his absence. This results from the humanity of the law and the tender regard it has for human life; which forbids that any proceedings shall take place in the trial of such a cause unless the prisoner charged is present in court, to make his objections to any and every step that may be taken in it which h'e may deem illegal, and to do whatever else he may or can legally and properly do in his own defense. Suppose that after the testimony has been taken the prisoner escapes, or becomes sick, and is unable to be brought into court, can the jury render a verdict? Suppose he escapes or is taken sick, and is thus disabled after the verdict has been received, can judgment' be rendered? If he were to escape or become sick, and unable to remain in court while the testimony is being taken, or the charge is being given, would the cause proceed?”
The opinion in the instant case implies that there was no invasion of the prisoner’s constitutional rights, but merely of a rule of procedure.
The Holton case, swpra, treated it. as an invasion of the constitutional right of an impartial trial, and I repeat *34for emphasis a portion of the opinion: “A recognition of a departwe in one case, might lead to the adoption of another; avid finally, those barriers, which are guarantees for the regular and impartial conducting of criminal cases, might be frittered away, and possibly eventuate in gross injustice. It is irnch easier to require the observance of the law, than to determine in what cases they may be safely dispensed with.”
Then came Mr. Justice Westcott’s opinion in Gladden v. State, 12 Fla. 562, where he said: “We will consider but one of them, which was the absence of the prisoner from the court for some minutes three several times during the progress of the trial — at one time when one of the State witnesses was being examined, and at another when a witness for the defense was being examined, and a third time during the argument of counsel. The absence was voluntary, but without any express waiver of his right to be present.
“It is unnecessary for us to determine whether the prisoner can waive his right to be present during the trial, or whether a simple voluntary absence upon his part cam be held to be a> waiver of Ms constitutional right, and authorise the State to proceed in Ms< absence. These questions have been settled in this State.
“This court has laid down the rule very broadly, and has, perhaps, extended it beyond the views of the courts of some other. States.” .
Justice Westcott then quoted part of the passage from Holton v. State, supra, and that it might burn into the minds of those charged with protecting accused persons in their constitutional rights, he placed the quotations in italics.
*35The circumstances' surrounding the absence of the prisoner in the Gladden case are strikingly similar to chose in the instant case. Lowman was absent from five to ten minutes. He was absent “three several times,” “the absence was voluntary.”
The question next came before the court in Irvin v. State, 19 Fla. 872, where the court said:
“The rule is well settled in this State that the prisoner has a right to be, and must be, present during the trial of a capital case; that no steps can be taken by the court in the trial of the cause in his absence.” Citing Holton v. The State, and Gladden v. The State.
Again the question comes before the court in Adams v. State, 28 Fla., 511. In that case the jury was sent from the court room while the competence of a witness was discussed. The prisoner’s counsel proceeded with the discussion for about ten minutes when it was discovered that the prisoner had been taken from the court room with the jury. On the return of the prisóner to the court room, the judge requested his attorney to commence anew his argument so that the same matter could be gone over in the presence,of the accused, but counsel refused to do. this and the trial proceeded.
In reversing the case upon this'ground this court said: “It was early decided in this State, and has been rigidly adhered to in later ’ decisions; that the prisonér has the right, and m fact ry,ust be present during the trial of a capital case, and no steps can.be taken by the court in his absence. .There.is no doubt about the f,act .that the accused here was taken from the court room and. remained out' for at least ten minutes during the discussion of the competency of a'witness against him. He has the right *36to be present and to hear questions of law as well as questions of fact discussed, cmd in fact no steps can be taken in the case in Ms absence. The court miost see in capital cases that the accused is present before any proceedings are taken in the case. The fact that the court directed the argument to be gone over again could not possibly restore the accused to the position of hearing what had already been said in his absence.” Citing Holton v. State; Gladden v. State, and Irvin v. State.
The trial judge is charged with the duty of seeing that a prisoner has a fair and impartial trial. In the Holton case this court said that his presence in court during the entire proceeding is one of the guarantees of the “impartial conducting of the criminal cases.” The presence of the accused in the court room is one of the things that this court has said that' “the court must see.” In Lovett v. State, 29 Fla., 356, the rule was again recognized, stated and affirmed. In that case a part of the head note by Mr. Justice Bainey is “It is indispensable to a legal conviction of a defendant on trial for murder that' he should be personally present in court during the trial.”
I have looked in vain for a definition of the word “indispensable” that would justify the conclusion in this case that his right to be present is a “vain technicality”; or that his presence “may be dispensed with for a short time,” which is the doctrine of this case.
In Palmquist v. State, 30 Fla., 73, the necessity for the presence of the accused in court during the entire trial was regarded as so essential that it was held that the record must show it.
In the case of Summeralls v. State, 37 Fla. 162, Mr. Justice Taylor said:
*37“It is well-settled hg repeated decisions here, as well as in other States, that in cases of felony the accused must be personally present in court during every stage of his trial from its beginning to and including the final passing of sentence. If it is shown that he was absent during the taking of any essential step in the trial, he cannot be said to have had a trial in due course of law,”
Still no qualification of the principle; still no intimation that the right to have an impartial trial, or as Mr. Justice Taylor put's it, “a trial in due course of law,” is a “vain technicality.”
Section 6223, Acts of 1911, in no wise affects the matter under consideration in. this case. There is no question involved “of the misdirection of the jury,” “the improper admission or rejection of evidence” or a “matter of pleading or procedure,” but instead there is involved what Mr. Justice Douglas said was the constitutional right to cm impartial trial and what Mr. Justice Taylor said was “due course of law.”
Since the passage of that statute the case of Morey v. State, 72 Fla. 45, was decided by this court, and in an opinion by Mr. Justice Ellis, he reiterates the rule and cites all the authorities where this principle was enunciated, strengthened, elaborated, affirmed' and seemingly irrevocably fixed as law of this State, and no attempt was made to invoke the provisions of Chap. 6223 as authority for ignoring the previous decisions. The opinion in the instant case cities Sec. 3977, Gen. Stats., 1906, that, “No person prosecuted for a felony shall be tried unless personally present during the trial.” This statute was enacted in 1868, and after the decision in Holton v. State and Gladden v. State, so that these decisions do not rest *38upon that statute' 6r any other statute, but upon a fundamental constitutional right.
So clear, so positive, so unequivocal is the unbroken line of decisions of this court since the Holton case, in 2 Fla., that the Attorney General begins the discussion of this question Avith the statement: “The facts being uncontroverted it follows, if the question is properly before this court, that if the rule heretofore announced Toy this court in the oases cited hy counsel is to he adhered to in all its rigidity, the contention must he sustained.”
There is in this an implied invocation to this court to depart from “the essential forms of law prescribed for the mode of conducting the ascertainment of guilt” of which at the time when the courts were scrupulously careful to guard and protect, constitutional rights, this court said that by such departure “those barriers, which are guarantees for the. regular and impartial conducting of criminal cases, might be frittered away.”
1 cannot folloAv the invocation of the Attorney General . Avhich seems to have been followed by this court, and concur in Avhat may fritter away any of the rights of an accused person on trial for his life.