The defendant filed a motion for a new trial alleging as a fact that the jury which *1155convicted him received additional instructions or charges from the judge in the courtroom while he, the defendant, was absent from the courtroom. The motion was overruled without a hearing, and the defendant reserved a bill of exceptions to the denial of the motion as well as to the denial of a hearing on the motion. The pertinent minutes for the particular day of trial read as follows:
“The introduction of evidence was begun, the accused being present in court represented by counsel. Upon completion of the evidence the case was argued by counsel, after which time the court charged the jury. The jury retired to the jury room for deliberations in the case at 12:25 P.M. The jury returned to the courtroom at 1:15 P.M., and through its foreman, rendered the following verdict written on the reverse side of the bill of indictment:
“We the jury find the accused guilty. John A. Landry, Foreman, June 17, 1969.”
The State admits that after the jury retired upon receiving the judge’s original charge and upon the submission of the case to it, the jurors were returned to the courtroom, where they asked for and were given additional instructions. The State admits as a matter of fact that there was a renewal of the jury proceedings in the courtroom which is shown in the transcript of the trial but not reflected in the minutes of court. It was during this interval of the trial that defendant alleges he was absent from the courtroom. The State in all honesty concedes that the statement in the minutes of defendant’s presence when the trial was resumed at the beginning of the day would not affirmatively show the defendant’s presence during the later proceedings which are not reflected in the minutes. Under Code of Criminal Procedure Articles 808, 831(5), and 832 the defendant in this capital case could not waive his presence during any of the jury proceedings.
For these reasons, without disturbing the verdict or the sentence imposed, it is ordered that this case be remanded temporarily to the Nineteenth Judicial District Court, Parish of East Baton Rouge, to enable the State to show contradictorily with the defendant whether or not jury proceedings were had on June 17, 1969, at which the defendant was not present, and to have the minutes corrected accordingly to show whether there was a resumption of the proceedings in order to further charge the jury and whether or not the defendant was present; and it is further ordered that a certified copy of said minutes, when corrected, be sent up to this court with a copy of the proceedings had, to the end that this appeal may be determined. The trial court is ordered to make this disposition without unreasonable delay but no later than January 15, 1972.