(dissenting). It is a well settled rule, that in criminal trials the accused has the right to be present at every stage of the proceeding, and in crimes of the grade of felony, he must be, whenever any action is taken to his prejudice.
“ The rule indeed,” remarks Battle, J., in State v. Blackwelder, Phil., 38 ; “ is but a full development of the principles contained in the 7th sectiop of the declaration of rights (§11 of art. 1 of the present Constitution); “ That in all prosecutions, every man has a right to be informed of the accusation against him, and to confront the accusers with witnesses and other testimony,” “ and this,” he adds, “ ought to be kept forever sacred and inviolate.” “ The rule is,” says Reade, J., “that in a criminal trial, nothing shall be done to the prejudice of the defendant without his presence. The exception is that in a criminal trial for a misdemeanor the rule may he relaxed by the consent of the defendant.” State v. Epps, 76 N. C., 55.
In State v. Bray, 67 N. C., 283, the charge was for larceny and receiving, and the jury returned a verdict of acquittal upon the first count, and guilty on the second, before the Judge at his room. The verdict was so entered at the opening of the Court the next morning.
*410■ On appeal the verdict was set aside, because not rendered in the defendant’s presence. BoydeN, J., delivering the opinion, saj'-s: “We think the case of the State v. Crayton, 6 Ired., 164, and the case of the State v. Blackwelder, Phil. Law, 38, and particularly the last, are decisive of this case. It is true that both of the above cases were capital, but the reasons for the decision in the latter case apply equally to a case like the presentand besides, we believe the practice has been uniform to receive such a verdict only in open Court and in the presence of the prisoner.”
In State v. Jenkins, 84 N. C., 812, the defendant was charged with burning a mill, and a verdict convicting him of the offence was delivered to the Judge at his room, at a late hour in the night, in presence of his counsel and with their consent. Speaking for the Court, our late associate Rueein, J., says: “ In every criminal prosecution, it is the right of the accused to be informed of the accusation against him and to confront his accusers. In capital trials this right can not be waived by the prisoner, but it is the duty' of the Court to see that he is actually present at each and every step taken in the progress of the trial. In prosecutions for lesser felonies, he has exactly the same right. Whether the right can be waived in such cases is a point about which the authorities seem to be divided.”
In State v. Sheets, 89 N. C., 543, the indictment was for malicious mischief in poisoning a mare colt, and one of the exceptions was'to the Judge’s rehearsal of part of the evidence in his charge to the jury in the defendant’s absence. It was overruled, in doing which Ashe, J., our deceased associate, says: “ The indictment is only for a misdemeanor, and the defendant, we presume, was out on bail, as the record does not show he was in custody. If he thought proper to absent himself during the progress of the trial, it was his own fault.”
*411In State v. Payton, 89 N. C., 539, the charge was for a felony, made such by statute (acts 1874-’75, chap. 228), in burning a stable in one count, a granary in the other, and the error assigned was in permitting one of the counsel for the State to make his argument to the jury when the defendants were not present in Court. The same Judge distinguishes between felonies, classing those of an inferior grade with misdemeanors, citing in recognition of the distinction, several cases decided in this Court, and concludes his review in these words: “ So, it seems in the trial of inferior felonies, the strictness of the rules enforced on the trial of capital offences is to some extent relaxed, and this may account for the fact that we have been unable to find any case where it has been held, that the absence of a prisoner on a trial for an inferior felony, while his case is being argued before the jury, has been held to be a ground for a new trial.”
In the case of State v. Bray, supra, the conviction was of án aggravated misdemeanor, punished with the same severity as the associated charge of which the defendant was acquitted, and yet the manner of rendering the verdict vitiated the trial, and was held to entitle him to a venire de novo. But the ruling can be sustained upon the other ground, that no action was taken to the prejudice of the accused by the Court or by the jury in his absence.
The difficulty of running the dividing line between felonies of á higher.grade and felonies of an inferior grade, is an insuperable objection, to my own mind, to making such a classification, and placing the one with crimes that are capital, and the other with such as are misdemeanors, so as, under some circumstances, to require the presence of the accused, and in others to dispense with it, when the verdict is rendered and judgment pronounced.
Instead of this, it is safer and more consonant with the practice in criminal trials, to recognize the broad line of demarcation that separates a felony of whatever grade from a *412misdemeanor; a distinction intelligible and susceptible of easy application in practice.
“ Where the punishment is corporal,” we quote again from State v. Payton, supra, “the prisoner must be present, as was held in Rex v. Duke, Holt, 399, where the prisoner was convicted of perjury, Holt, C. J., saying, ‘Judgment cannot be given against any man in his absence for corporal punishment,’ and he adds: ‘ For if one give judgment that he be put in the pillory, it'might be demanded, when? And the answer would be when we catch him; and there never was a writ to take a man and put him in»the pillory.’”
In the 3d Vol. of Whar. Cr. Law, §2991, the author, after stating that the accused must be present in person, proceeds: “Nor does the necessity for the defendant’s presence cease with the opening of the case. Should he be at any time absent, the proceedings cease to be valid, and it will be ground for a new trial, should the Court proceed with the case in defiance of this rule,” except that this right may be waived in misdemeanors, in which no corporal punishment is imposed.
“ Never has there heretofore,” (he quotes the words of Gibson, C. J., in Pruin v Com., 6 Harris, 104, which are reiterated by Williams, J., in Dougherty v. Com., 69 Penn., 286,) “ been a prisoifer tried for felony in his absence. No precedent can be found in which his presence is not a postulate of every part of the record. He is arraigned at the bar, and if he is convicted, he is. asked at the bar what he has to say why judgment should not be pronounced against him. These things (the text is in italics), are matters of substance, and not peculiar to trials for mibrder. They belong to every trial for felony, at the common law, because the mitigation of the punishment does not change the character of the crime.”
In Massachusetts, Arkansas and Ohio, statutes have been passed requiring the presence of the accused in person during a trial for felony, and this doubtless is • to prevent any *413ruling tliat this great principle can be waived by anjr act of his own, or by his counsel, for the case cited in the opinion of the Court in this case, shows that the correcting hand of the Legislature was needed.
Row, it'is true, the conduct of the accused in his hasty departure, when the jury were about to deliver their verdict, the purport of which he seems to have anticipated, entitles him to no favor, but it is the importance and value of the principle which is sacrificed in giving effect to it, and the judgment consequent on its rendition.
In a sister State, where precisely the same facts occurred upon a charge of larceny, the Court say : “ In criminal cases of the grade of felony, where the life or liberty of the accused is in peril, he has the right to be present, and must be present, during the trial, and until the final judgment. If he be absent, either in prison or by escape, there is a want of jurisdiction over his person to proceed with the trial, or to receive the verdict, or to pronounce the final judgment.”
This ruling is followed in two other cases, Andrews v. State, 2 Sneed, 550; Hutchison v. State, 3 Cold., 97; Webb v. State, 5 Cold., 16.
In Sneed v. State, 5 Ark., 431, the Court declaro the statute-in that State but an affirmance of the common law, and say that when the defendant is out on bail, the principle is the same, the law not regarding the cause of his absence, as whether he is away voluntarily or against his will.
The subject is fully discussed and the cases on the point examined, in the note of the editor to the case of Figlet v. State, found in 128 Vol. of Am. Dec., 626.
I am not disposed to relax those safeguards which the wisdom of past ages has provided for the security of persons charged' with crime, while the modern tendency is manifested in some of the Courts to dispense with them,, upon the idea of a waiver, because of the inconvenient necessity for a new trial, which an observance of them may *414render necessary. I am therefore constrained to enter my •dissent to the ruling of the Court, and the great extent to which the opinion goes.
No error. Affirmed.