The opinion of the Court was delivered by.
Fenner, J.This appeal is taken from a conviction of manslaughter.
Assignment is made of the following errors apparent on the face of the record, viz:
First. That the record does not affirmatively show the presence of the accused on several days when the trial of a motion for change of venue was progressing in open court and testimony therein was being taken — on one day when the trial of the cause itself was proceeded with before the jury — when the verdict of the jury was rendered — and when a motion for a new trial was tried and overruled.
It is no longer open to question that the failure of the record to show the presence in court of a prisoner charged with felony, at every important stage of the proceedings, is a fatal defect.
State vs. Revells, 31 An. 387.
State vs. Smith, Id. 406.
*233State vs. Clark, 32 A. 558.
State vs. Ricks, Id. not yet reported.
Wharton Cr. L. 2991, 2999. Bishop Cr. Proc. § 273.
Several of the proceedings charged to’ have been had in his absence, in the present case, were of importance, and of a character justifying and requiring his presence in court. He was a prisoner, and his presence or absence entirely under control of the court, and, therefore, not within the ruling in State vs. Ricks, above cited. Nor do any of the proceedings fall within the exceptions to general rule recognized in State vs. Clark, 32 An. 558, except perhaps the trial and overruling of motion for new trial. That motion involved questions of law only, and his presence at the argument and decision was probably of no importance. Had the motion been based on grounds of fact, involving the taking of testimony, as in the case of the motion for change of venue, our conclusion might be different.
The record actually presents the defects assigned as errors.
Second. That the record shows that the judge recharged the jury in the absence of the counsel for the accused.
It does so appear from the record; and it seems well settled that such error is fatal.
People vs. Trim, 37 Cal. 274. Martin vs. State, 51 Geo.
Sergeant vs. Roberts, 1 Pic. 237. Wharton Cr. L. §§ 3164, 3309.
No effort seems to have been made to prócure the attendance of counsel, though his absence was observed by the judge.
His absence may have been momentary and necessary. The case is not affected by the fact that, according to the judge’s statement as entered on the minutes, he was only asked by the jury to restate his original charge, and only did so restate it. If the charge had been reduced to writing and had been simply reread to the jury, the absence of counsel might have been of no moment. Such, however, is not shown to have been the fact. No man’s memory can be assumed to be sufficiently perfect to repeat literally verbal statements made by him sometime before;
Statments of law involve so many nice distinctions that slight variations in the words used will often add to, or diminish, the precise meaning conveyed. Even unconsciously, the judge, in attempting merely to repeat his charge, may have altered its substantial effect upon the minds of the jury. It was the prisoner’s right that his counsel should have been present to observe the new language used by the judge, and to protect him from injury resulting therefrom. .
It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the cause be remanded for a new trial according to law.