dissenting in part.
The accused’s assignment of error No. 7 involves the application of that part of the Code, section 4894 reading: “That a person tried for a felony shall be present during the trial.” The statute, quoted in this mandatory form, is merely declaratory of a common-law principle. Judge Kelly, in Noell v. Commonwealth, 135 Va. 600, 115 S. E. 679, 30 A. L. R. 1345, said:
“That principle did not spring solely from a regard for the welfare of the accused. The public has an interest in every case involving the life or liberty of a citizen, and both in England and in this country it has long been recognized as a settled rule of the common law, based as well upon public policy as upon the interest of the accused, that his continuous presence, from arraignment to sentence, is an essential part of the process of law provided for his trial and without which the courts have no jurisdiction to pronounce judgment upon him.”
*932A principle-so imbedded in our system of jurisprudence and one that- has remained in our statute without change in this particular for só long, should not be curtailed, or frittered away by judicial construction. The right with which the statute deals, not being for the sole benefit of the accused, is one which he cannot waive. This has been the uniform ruling of this court since its organization. The following are a few of the cases so holding: Sperry’s Case, 9 Leigh (36 Va.) 623, 33 Am. Dec. 261; Hooker’s Case, 13 Gratt (54 Va.) 763; Jackson’s Case, 19 Gratt. (60 Va.) 656, 664; Lawrence’s Case, 30 Gratt. (71 Va.) 845; Bond’s Case, 83 Va. 581, 3 S. E. 149; Spurgeon’s Case, 86 Va. 652, 10 S. E. 979; Shelton’s Case, 89 Va. 450, 453, 16 S. E. 355; Snodgrass’ Case, 89 Va. 679, 687, 17 S. E. 238; Gilligan’s Case, 99 Va. 816, 37 S. E. 962; Jones v. Commonwealth, 100 Va. 842, 41 S. E. 951; Kibler v. Commonwealth, 94 Va. 804, 26 S. E. 858; Bowen v. Commonwealth, 132 Va. 598, 111 S. E. 131; Fetters v. Commonwealth, 135 Va. 501, 115 S. E. 692.
Justice Harlan, in the case of Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202, 28 L. Ed. 262, states the doctrine thus:
“That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods. * * * If he be deprived of his life or liberty without being so present, such deprivation would be without due process of law required by the Constitution.”
The fact that the accused is not able to waive the right to be present during the trial of a felony case, eliminates the suggestion of invited error in the contrary opinion.
The Attorney-General in his brief relies on the case of Palmer v. Commonwealth, 143 Va. 592, 130 S. E. 398, and the contrary opinion refers to- this case, but evidently *933recognizes that it is not an authority for the position taken, because no stress is laid thereon. In that case this court held that the argument on instructions, and the consideration of instructions by the judge, were not a part of the trial, but it expressly held, that the ruling of the court on the instructions either in granting, or refusing, them was a part of the official action of the court and a part of the trial. Judge Prentis in that case had this to say:
“The considering of proposed instructions by a court, if done in the absence of both the jury and the accused (and it should generally be done in the absence of the jury), cannot affect the prisoner’s rights in any true sense. This is neither official nor unofficial action, but merely prudent preparation therefor. His rights can only be affected after the trial judge has determined the legal questions so raised and when he communicates the instructions to the jury, or refuses to grant any instructions which are prayed for. This is official action and when any official action is taken in the trial which affects his rights, the accused must be present.”
The contrary opinion does not expressly hold, but strongly suggests, that the accused is barred by estoppel from urging this court to consider the fact that he was not present when the instructions were refused. As I have pointed out above, that which the law makes essential in proceedings involving life or liberty cannot be dispensed with, or affected by, the conduct of the accused. The presence of the accused during the trial from arraignment to final judgment is jurisdictional, and cannot be waived. See authorities cited and others collected in 3 Michie’s Dig. page 260.
The opinion finally admits that the refused instructions are a part of the record, and without a particle of evidence on the subject, states that they could have become a part of the record only in one of two ways. (1) They could *934have been given to the clerk by the judge out of court, or (2) they could have been given to him by the judge in court. “If we are to indulge in the first presumption then we are to presume error and this we can never do.” Then the opinion repeats the same error that Judge Richardson made in the case of Dove v. Commonwealth, 82 Va. 301, by applying a principle applicable to a civil case on review in this court to a felony case.
Judge Prentis, in White v. Reed, 146 Va. 246, 135 S. E. 809, quotes the language used, applies it in a civil case, and cites numerous civil cases in support of the doctrine, but does not refer to a single criminal case.
Judge Keith, in the Gilligan Case, 99 Va. 816, 37 S. E. 962, emphasizes the fact that this doctrine cannot be applied to criminal cases in the following language:
“The contention of the prisoner is, first, that a verdict upon an indictment for a felony must be rendered by the jury in open court in the presence of the prisoner, and received and recorded by the court; that these essential facts must appear from an inspection of the record, and no intendment will supply théir omission, or the omission of any one of them; that the maxim ‘omnia praesumuntur rite et solemniter esse acta’ has no application to records made in' trials for felony, and that courts cannot resort to any presumption to supply the omission from the record of that which should appear by the record.
“To all this we give an unqualified assent. * * *
“But while no intendment can supply an omission from the record of that which is material, all proper inferences may, and must be, drawn from that which does appear, and while the presumption that all things have been properly done in a court of record cannot be resorted to in a criminal case, it is equally true that there can be no presumption of error.”
Judge Phlegar, in a dissenting opinion concurred in by *935Judge Buchanan, states the principle thus: “The presumption that a court of general jurisdiction acts rightly cannot supply the substantive or essential parts of the record in a criminal case.”
Thus we see that both in the majority and minority opinions this court expressly stated that the principle does not apply in a felony case. The majority opinion held that proper inferences might be drawn from the entire record, but there was no presumption of whether or not the court had acted rightly on a jurisdictional matter. In the same case Judge Keith used this significant language: “We are aware that courts rigidly enforce the prisoner’s right to be present at every stage of the trial from his arraignment to the sentence, when anything .is to be done which can affect his interest. We are aware that no court has been more zealous and exacting in enforcing this privilege, and in requiring that it should appear from the record, than this court
There is no need to indulge in any presumption in this case. The record contains the positive statement that the instructions were refused in the absence of the accused. The objection is to the- action of the court in refusing the instructions in his absence, not to the act of delivering them to the clerk in his absence. If we are to indulge in guessing how they got into the custody of the clerk, the possibilities are numerous. To suggest a few, the clerk might have been present when they were refused and there took immediate possession; one of the five interested attorneys might have given them to the clerk; they might have been left in Mr. Turnbull’s office and were later given to the clerk by one of his employees; the stenographer might have kept them to copy into the record and later delivered them to the clerk. The court reporter usually takes charge of exhibits and papers filed during the progress of the trial, marks them for identification, and when the trial is concluded delivers such *936papers to the proper custodian. The handing of instructions or any other paper to the clerk does not require any knowledge of law. The determining of what instructions should be given, refused, or modified, requires the exercise of legal knowledge and is judicial. The judge made his decision, earmarked each instruction ■ for identification. This completed his official judicial act and was final.
The opinion makes these various suggestions of both law and fact, but finally decides the point on the ground that the refused instructions were never presented to, or refused by, the court, but by the judge in chambers, or recess of the court. If they were never tendered to the trial judge, never passed upon by the trial judge, they do not constitute a part of the record, and yet the opinion says they are “in the record.”
There was no bill, or certificate of exception, used in this case, but a “stenographic report of testimony and other incidents of the trial.” Some of the incidents of the trial were the ruling of the court on instructions, the exceptions noted, the notations of the judge on the instructions given and refused, the statement of when, where and under what, circumstances the instructions were considered, and the final ruling of the judge in refusing those that were refused. There was only one signature of the trial judge to the entire stenographic report, and finally, a certificate of the clerk certifying that the completed report was duly filed with him eight days after the final order was entered.
Now, I am in entire accord with that part of the opinion in which it is stated,' that- the consideration of instructions in chambers, is unobjectionable, but I cannot reconcile this statement with the holding that because the refused instructions were tendered, considered and refused in chambers, or recess, they were never tendered to, nor refused by, the court. It is also stated that “at the most they were instructions counsel probably intended to ask the court to *937give and did not.” It must be remembered that the record reveals that the introduction of evidence before the judge and jury was completed about noon; that the court stated the recess was taken for the purpose of considering the instructions. Just when the instructions were requested, or tendered to the judge does not appear; but it does appear that either before the judge left the bench or immediately thereafter he had the instructions in his possession. They were tendered to and accepted by him in his official capacity; as trial judge he heard argument for and against them; as trial judge he ruled thereon; as trial judge exceptions were taken to his ruling; as trial judge he made notations on them; as trial judge he signed the stenographic report certifying all the above was done by him in his official capacity and in the absence of the accused. Just when and where did he lose his official powers? When the jury retired, or when he left the bench, or was walking down the stairs from the court room? If he lost his powers, when and where did he regain them? It will be quite a surprise to the judge to learn that when he refused the instructions he was not acting officially, and more surprising still to five able, experienced and busy lawyers to learn that they wasted approximately two hours of argument for and against instructions and in noting exceptions to the ruling of some person other than the trial judge in his official capacity.
Is it possible that the law in this State is, that after the introduction of evidence in the trial of an accused charged with murder, where there is substantial testimony tending to prove that the killing was done in self-defense, the trial judge can retire to chambers or the clerk’s office and there receive instructions desired by both the attorneys for the prosecution and for the accused, hear argument for and against the same, there refuse to give any instruction embodying the theory of self-defense, return to the court room, *938read to the jury the instructions he has previously determined to give, receive the verdict of the jury finding the accused guilty of murder in the first degree, overrule a motion to set aside the verdict, pronounce sentence on the accused and adjourn court for the term, and on the next day, when he is presented with a bill of exceptions incorporating therein the instructions refused, the exception of counsel to the ruling, and refuse to sign the bill, on the plea, that the instructions were never tendered to him in court, nor was any reference made to them in the court room? Is there any doubt that, under such a state of facts, this court would forthwith issue a writ of mandamus, compelling the judge to sign such a bill of exception? If we can consider the action of the trial judge in refusing the instructions for any purpose, we must consider it for all purposes.
For the reasons stated I cannot concur in the opinion. I think the judgment of the trial court should be reversed, the verdict of the jury set aside, and the case remanded for a new trial.