(dissenting).
I would hold that an accused’s right to be present at every stage of the trial, when his substantial rights may be affected by the proceedings against him, is a constitutional right. Reliance cannot be placed on the harmless error rule to justify the deprivation of this constitutional right.
As early as 1884 the importance of this right was emphasized by the Supreme Court in Hopt v. People of Territory of Utah, 110 U.S. 574, at 579, 4 S.Ct. 202, at p. 204, 28 L.Ed. 262:
“ * * * the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony that he shall be personally present at the trial; that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the constitution.” (Emphases supplied.)
See also, Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 36 L.Ed. 1011 (1892).
In the case at bar, after the jury had retired to deliberate, it had the bailiff deliver a slip of paper, containing two questions, to the judge. These questions were:
1. “Altes’ testimony as to his answer as to why the name of White was used rather than Ware. May we rehear the above ?”
2. “Was the testimony given as to registered owner of car?”
Thereafter, pursuant to an agreement between counsel for both sides and the court,1 *the judge had the jury brought back into the courtroom and, in the absence of defendant,2 had the court reporter read “the answer” to the first of the above-quoted questions. After that was done, the judge verbally informed the jury that the answer to its second question was “no”.
Although the judge,3 ****after hearing the evidence pursuant to defendant-petitioner’s motion to vacate sentence under 28 U.S.C. § 2255, set out in his Finding of Fact No. 4 what the court reporter at the trial purportedly had read back to the jury in answering its first question, this is merely a reference to the original testimony, which is found on page 59 of the trial transcript. There is, however, no record of what the court reporter actually had read back to the jury. Rather, the trial transcript, at page 232, merely states:
“(The Reporter read back the requested material.)”
Thus, without even reaching the propriety of the judge’s answering the second question asked by the jury, I believe that the substantial rights of defendant may have been affected by the answering of the jury’s first question. Actually, it was impossible for defendant (and, of course, the jury) to know whether or not the reporter read back the correct material, whether or not he correct*721ly read it back, and moreover whether the original reporting was accurate. Secondly, unlike the court in Estes v. United States, 5 Cir., 335 F.2d 609, 618 (1964), cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559, which was able to determine on the record therein that a rereading of an instruction of law was a correct statement of law, how are we able to review an incomplete record? Thirdly, unlike Snyder v. Com. of Massachusetts, 291 U. S. 97, 108, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the rereading of certain portions of this trial testimony must have had some bearing on the jury’s verdict, otherwise why would it specifically have requested this information ? Fourthly, unlike those cases involving an instruction of law or a question on a point of law, a defendant if present can better contribute towards his defense on matters concerning trial testimony relevant to him. He is more likely to understand such material and be able to make suggestions to his attorney. Also, a defendant, under such circumstances, is entitled to be seen by the jury, and the jury, in turn, has a right to view his demeanor— especially where, as here, the jury has expressed a particular interest in a certain portion of the trial testimony relevant to defendant. Finally, in addition to the foregoing reasons, it is impossible to measure the psychological effect on the jury of defendant’s absence at that time.
Those cases4 where a defendant was not entitled to be present at some point during his trial involved situations where the communications between the judge and the jury were trivial or irrelevant or concerned solely a restatement of an instruction of law or a question on a point of law. Where, however, a defendant’s “substantial rights may be affected” (Hopt v. People of Territory of Utah, supra) and “whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge” (Snyder v. Com. of Massachsuetts, supra, 291 U.S. at 105, 54 S.Ct. at 332), it is imperative that such a defendant be present.
I would reverse and remand for a new trial.
. The government in its brief intimates that, because of an agreement in the court’s chambers, what occurred in defendant’s absence was not a part of the trial. Obviously what occurs between defendant’s indictment and his sentencing, and in the presence of the jury, is a part of the trial.
. Defendant’s counsel was present at this time.
. This was the same judge who had presided at the trial of defendant.
. Snyder v. Com. of Massachusetts, supra; Johnson v. United States, 318 U.S. 189, 201, 63 S.Ct. 549, 87 L.Ed. 704 (1943); United States v. Compagna, 2 Cir., 146 F.2d 524, 528 (1944), cert. denied, 324 U.S. 867, 65 S.Ct. 913, 89 L.Ed. 1423; Jones v. United States, 10 Cir., 299 F.2d 661, 662 (1962), cert. denied, 371 U.S. 864, 83 S.Ct. 123, 9 L.Ed.2d 101; Walker v. United States, 116 U.S.App.D.C. 221, 322 F.2d 434, 437 (1963), cert. denied, 375 U.S. 976, 84 S.Ct. 494, 11 L.Ed.2d 421; Estes v. United States, supra; and United States v. Hoffa, 7 Cir., 367 F.2d 698, 713 (1966), record ordered for certiorari.