Without scanning this entire record,' we are of the opinion that a new trial must be granted, on the ground that the court erred in recalling the jury and recharging them at their request, in the absence of .the. defendant, who was at the time in custody and confinement, though his counsel were present, but silent.
The presence of the prisoner is necessary to Fis.legal trial from the beginning to the end of that trial before the jury. 12 Ga., 25. And such was the rule and practice at common law. Wharton’s Crim. Plead, and Prac., 540 a, 545, 546, 549, 550.
Counsel for, the state conceded that the law required it, but insisted 'that the evidence before the circuit judge, which induced him to certify that this ground of the motion for a. new trial was true in fact — that is, that he did charge in the absence of the prisoner, who was in confinement at the time, should be also before this court; and that evidence; not being-in the record, the point could not be heard here. We cannot think so. If. the judge certifies any ground taken in the motion for. a new trial to be true in fact, this court receives that certificate as true, cer*512tain beyond cavil, conclusive; and it will not enquire on what proof he was satisfied of its truth. It is quite certain that the court below will take care of itself, and only certify any facts which make a charge of error upon indubitable assurance.
It matters not to this court whether what he certifies was made certain to him by affidavits, or by admission of the parties, or by his own observation. It is enough that his mind is satisfied of the truth of the ground taken, and that he so certifies in the record.
Judgment reversed.