(dissenting). The plaintiff testified that he was told by the ticket agent at Malvern, Ark., upon inquiry, that there would be a freight train along shortly upon which he could go to Texarkana, Arkansas; that when it came he boarded it and paid the conductor $2, the fare for passengers for that distance. Over his objection the court gave the following instruction: “The court instructs you that the presumption is that a person found upon a freight train is not legally a passenger, and if he claims that he is it devolves upon him to show a state of case that will rebut the presumption. He must show that he entered the train with the bona fide intention of becoming a passenger thereon; that is, that he either procured a ticket of defendant to ride upon said train, or that he intended in good faith to pay his fare.”
Sec. 6705, Kirby’s Digest, provides: “Local freight trains on all railroads or railways in this State shall carry passengers from and to any and all of their stations.” This court, in discussing this statute in Arkansas Midland Ry. Co. v. Griffith, 63 Ark. 499, said: “Since the State compels the company to carry passengers on one of its two kinds of freight trains, and since these are not easily distinguishable by persons unacquainted with the workings of railroads and trains, it is but just to presume that the persons in charge of these trains are clothed with authority and rest under the duty to designate to such as apply for passage, whether or not a particular -train will carry passengers, and that in this the conductor acts for and as agent of the company; for the convenience of the public is the great end in view, and this can not be secured without some method of giving essential information to persons interested. The conductor therefore having permitted plaintiff to board the train, and having received his fare, the plaintiff had a right to presume that the freight was a local freight — one which the law compels to carry passengers.”
It will be seen that not only this instruction that “the presumption is that a person found upon a freight train is not legally a passenger, and if he claims that he is it devolves upon him to show a state of case that will rebut the presumption,” etc., is not the law, but the conductor having permitted plaintiff to board the train and received his fare, all of which he did according to plaintiff’s testimony, raised the presumption in his favor that the train was a local freight and one which the law compels to carry passengers. The court’s opinion concedes that this part of said instruction above quoted was erroneous, but decides it was rendered harmless by the last sentence, which, standing alone, was a correct statement of the law. But it has often held that an erroneous instruction is not corrected and rendered harmless by a separate correct one with which it is in conflict. St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 224; Grayson-McLeod Lumber Co. v. Carter, 76 Ark. 69; Bolling v. State, 54 Ark. 602.
It seems singular that a whole right instruction will not render harmless the error of giving a contradictory wrong one; but if it be mixed, “ ’arf and ’arf,” the first part of the instruction erroneous and the remainder correct, the result is different, and in this court’s opinion not prejudicial. In other words, if the first sentence, which was admittedly erroneous, had been given as a separate instruction from the last sentence, which by itself was correct, the error would have been prejudicial and caused a reversal of the case, but because the true and the false were joined the error was rendered harmless. Truth blended with error makes a harmless compound, within the authority o.f the court’s opinion.
The court further justifies its opinion by saying the erroneous sentence was not specifically objected to. But the instruction was objected to as not correct and not the law, and the court says in effect: “True, it is not the law, but only the first half of it is wrong, and because your objection did not stop at the period separating it from the other sentence it is not sufficient.” Plaintiff was entitled to have his theory of the case fairly submitted to the jury on correct instructions, and when it was not done, as admittedly in this case it was not, he should not on appeal be met here with such technical refinements in objections and exceptions as that because he did not object to certain words, or a phrase, or a certain sentence or paragraph specifically, but only to the incorrect instruction, his only objection is insufficient.
The court erred grievously in departing from the wholesome and salutary rule laid down in Stokes v. State, 71 Ark. 112, and in effect overruling that case. There it held that the temporary absence of the judge from the court room during the trial vitiated it and was reversible error without regard to what happened during such absence, saying: “The facts shown by the above recitals are made one of the grounds of the motion for new trial. While it appears that the judge had lost control of the proceedings for only a very short time, yet that destroyed the integrity of the trial; for, without the presence of a presiding judge at all times to uphold the majesty of the law and enforce its mandates, there can be no trial, such as is contemplated by the Constitution and statutes. The Constitution centers the power to preside over the proceedings constituting trials in felony cases in the person of a judge. The proceedings “will not run” without his superintending and controlling power, even for a moment. We do not mean to hold that the judge must hear every word spoken and see everything that is done in the court room, nor that he is required to remain in the same place. This at times might be not only uncomfortable and inconvenient, but impossible. We do hold, however, that bis presence where he can at all times direct the proceedings is essential. He must be where, either on his own motion, or at the request of parties litigant, he can at all times during the trial protect and preserve their legal rights.
In Georgia it is held that the mere absence of the judge during the progress of the trial, where no objection is made, and where the absence is only for a few moments, and for a necessary purpose, is not necessarily reversible error. That, to become so, it must appear, not only that objection was made to the failure of the judge to suspend the trial, but that his absence resulted in some harm to the losing party. But in the last case in which this rule is followed the Supreme iCburt says: “If it were an open question, we would hold that the presence of the judge at all stages of the trial is absolutely necessary to its validity, and that the absence of the judge from the trial without suspending same for any length of time, no matter how short, or for any purpose, however urgent, would vitiate the whole proceeding, whether objection was made by the parties interested or not, and whether injury resulted to any one or not.” Continuing, the court says: “The judge is such a necessary part of the court that his absence destroys the existence of the tribunal, and public policy demands that the tribunal authorized to pass upon the life, liberty and property of the citizens shall be constituted during the entire trial in the manner prescribed by law.” The court then adds: “The great weight of authority is in harmony with this view,” and quotes from several cases, citing many more. Horne v. Rodgers (Georgia), 49 L. R. A. 176; Ellerbee v. State (Miss.), 41 L. R. A. 569, note; 17 Am. & Eng. Ency. Law, p. 720, and authorities cited in note.
Further: “As this temporary absence of the judge was of itself reversible error, it is unnecessary, etc.” This court adopted the right rule in that case, approving the strong language of the Georgia court, and it is supported by wisdom, sound policy and the great weight of authority. Courts are instituted for the protection of the people in the exercise and enjoyment of their rights and redress of their wrongs, and litigants are entitled to have their causes heard by the court as constituted and in the manner prescribed by law, and this is not possible in the absence of the judge whose duty it is to be present and in control throughout the trial. If it becomes necessary for a judge to absent himself during the trial, as it must and will, then he should suspend proceedings till such time as he can resume the bench and proceed under the forms of law. His absence does suspend the trial under the law and vitiate the whole proceedings without regard to its length, or whether' objection was made thereto, or injury resulted to any one because of it, and this court should have so held in conformity with its former correct ruling.
For these errors the cause should have been reversed and remanded for a new trial.
Mr. Justice Hart concurs in this opinion.