On the Merits.
BARHAM, Justice.This case was remanded temporarily for the purpose of having the minutes of court show whether or not the defendant was present during all of the jury proceedings on June 17, 1969. The trial court has complied with our order on remand and has presented to us the transcript of a proceeding had on the remand, its order for the amendment of the minutes of June 17, 1969, and the amended minute entry. Upon finding after a contradictory hearing, that the defendant was absent when the jury returned to the courtroom and received additional instructions, the district court ordered the minutes corrected accordingly. Pursuant to that order the following minute entry was made :
“The Court ordered that the minutes of June 17, 1969 in this matter be amended only insofar as to show that at 1:10 p. m. the jury returned to the courtroom and requested additional instructions from the Court; that when the jury returned to the courtroom for said additional instructions the accused was not present in court.”
Code of Criminal Procedure Article 831 reads in pertinent part: “A defendant charged with a felony shall be present: *1161* * * (5) In trials by jury, at all proceedings when the jury is present * * *.”* Article 808 provides: “If the jury or any member thereof, after having retired to deliberate upon the verdict, desires further charges, the officer in charge shall bring the jury into the courtroom, and the court shall in the presence of the defendant, his counsel, and the district attorney, further charge the jury. * * (Emphasis supplied.) See former R.S. 15:392, 15:396.
The jurisprudence of this state is well* settled that one tried for a felony must be personally present in court at every important stage of the trial, and that “otherwise a verdict against him and the sentence will be set aside”. State v. Pope, 214 La. 1026, 39 So.2d 719. Moreover, we have repeatedly held that the minutes of the court must affirmatively disclose that he was present. State v. Pope, supra; State v. Thomas, 128 La. 813, 55 So. 415; State v. White, 156 La. 770, 101 So. 136; State v. Futrell, 159 La. 1093, 106 So. 651; State v. Layton, 180 La. 1029, 158 So. 375. Because of these latter holdings we remanded so that the minutes might be amended to show whether the defendant here was present when the jury returned to the courtroom and received further charges from the court.
The redactors’ comment to Article 831 reads in part: “The requirement in Clause (5) that the defendant be present at all proceedings when the jury is present stresses the importance of the defendant’s presence whenever the jury is in court. It clearly covers the judge’s charge or supplemental charges to the jury, at which point the defendant’s presence was generally required under Arts. 392 and 396 of the 1928 Louisiana Code of Criminal Procedure, and any doubts raised by the nebulous phraseology of former Art. 392 are cleared up. * * * ” (Emphasis supplied.)
The minutes now show that the defendant was in fact not present in the courtroom when the jury received further charges. In accordance with the express mandates of the Code and our jurisprudence we are required to reverse the conviction and sentence.
For the reasons stated the conviction and sentence are reversed and set aside, and the defendant is remanded to the district court. '
SUMMERS, J., dissents. See the reasons assigned in my dissent on remand.The only exception to the mandatory requirement of Article 831, the waiver provided in Article 832 where a defendant charged with a felony not punishable by death temporarily and voluntarily absents himself, is inapplicable for two reasons in this case: The defendant was charged with murder, and he did not voluntarily absent himself. See 27 La.L.Rev. 175, 219.