(dissenting).
By this order the Court reverses the trial court’s ruling denying a hearing on a mo*1157tion for a new trial, and also reverses the trial court’s ruling denying a motion for a new trial. In doing so, while declaring that the order is not disturbing the verdict or the sentence imposed, the Court orders this case “remanded temporarily” to enable the State to make a showing at an evidentiary hearing on the issue of defendant’s presence in Court. An inordinately short time until January IS, 1972 is fixed to dispose of this proceeding in the trial court.
In taking this action the Court seems to impose the obligation on the State to make a showing to support a claimed error upon which the defendant relies.
It would perhaps be acceptable to issue an interlocutory order for the correction of a technical omission in the record of a case here on appeal, but to reverse and set aside two rulings of the trial court and order a hearing in this manner, without granting defendant a new trial if the error warranted this action, is an unheard of procedure. It is a result none of the parties contended for and none will have anticipated. If this precedent is allowed to stand as a rule of procedure, this court will conceivably, in the future, be ordering the retrial of issues piecemeal. And this after an appeal has been perfected and lodged here.
Defendant has either shown or he has not shown that he was not present in court as the law requires. If he has made this showing, he is entitled to a new trial for a substantial violation of a statutory right. La.Code Crim.Proc. arts. 831, 832, 921. If he has not made the necessary showing, the appeal on this issue fails.
Once an order of appeal has been properly entered, as in this case, the jurisdiction of the trial court is divested. La.Code Crim.Proc. art. 916.1 The only conceivable action the trial court may take under the circumstances of this case is to “Correct an error or deficiency in the record,” La. Code Crim.Proc. art 916(2). Since the reversal of the trial court on two of its significant rulings can hardly be characterized as an “error or deficiency in the record,” the Court’s action, in effect, orders the trial court to do something (hold a hearing) when it has no jurisdiction to do so.
*1159What the Court may do is to have the trial court amend the record to show what took place at the trial when the matter is within the trial judge’s recollection. State v. Jones, 163 La. 51, 111 So. 492 (1927). There is no authority to reactivate the trial in whole or in. part and order a hearing on a controverted issue of fact in a court which has been divested of jurisdiction pending the appeal. The State’s attorney did not admit that the defendant was not present in court. He simply stated that the minutes did not show whether defendant was or was not in court when the jury returned for instructions, and that the minutes did not show that the jury returned for instructions. These fact questions must therefore be established in the hearing ordered.
Since the Court’s action is not responsive to the defendant’s motion for a new trial (no new trial has been ordered), a serious question of double jeopardy is presented by this “temporary remand”. La.Const. art. 1, § 9; La.Code Crim.Proc. art. 591.
This case is only an example of this Court's urge for innovation without a proper basis in law or fact and without a proper understanding of consequences. These actions cannot but add confusion and uncertainty to the law with prejudice to the State and the accused in many areas. In my view the Court’s action in this case vividly demonstrates that all innovation is not improvement.
. Article 916 of tlie Code of Criminal Procedure provides:
“Tlie jurisdiction of the trial court is divested and that of the appellate court attaches, upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction over the matter except to :
“(1) Extend the return day of the appeal or the time for filing and signing bills of exceptions and per curiae;
“(2) Correct an error or deficiency in the record;
“(3) Correct an illegal sentence, or reduce a legal sentence in accordance with Article 913(B) ;
“ (4) Take all action concerning bail permitted by Title VIII;
“ (5) Receive and sign bills of exceptions and add per curiae thereto; and
“(6) Render an interlocutory order for a definitive judgment concerning a ministerial matter not in controversy on appeal.”