dissenting from the judgment and from the ruling of the majority in Division 11 of the majority opinion.
1. I have cited cases in this dissent which control over the cases cited by the majority as they are older cases and state the true constitutional principles even when no harmful effect of what was done is shown, though in this case harm may have resulted. This decision is contrary to our own Constitution and that of the United States. It deprives the defendant of due process and of the equal protection of Georgia law. Code Ann. § 2-104 (1945 Const., Art. I, Sec. I, Par. IV).
2. It will be seen from this supplemental certificate that some of the facts are not derived from personal knowledge of the affiant. However, this communication between judge and jury was a series of acts and words amounting to one act and, since the subject matter of the words spoken by the deputy sheriff and judge were related to the affiant so quickly after their utterance, under the law they were a part of the res gestae and proper matter for support by affidavit.
“It is the legal right of a person accused of crime in this State to be present at all stages of his trial, such right being derived from our Constitution, Art. I, Sec. I, Par. IV (Code Ann. § 2-104). This principle has been recognized since the establishment of this court.” Wilson v. State, 212 Ga. 73, 74 (90 SE2d 557), citing cases applying the principle. This right applies during the recharging of the jury, and the presence of his counsel is no substitute for that of the accused. Bonner v. State, 67 Ga. 510; Wilson v. State, 87 Ga. 583 (13 SE 566); Rider v. State, 195 Ga. 656 (6) (25 SE2d 304).
Under the above cited rule, it is irrelevant whether or not the trial judge’s response to the request for a recharge was properly phrased as a matter law (as to this see Wilson v. State, 215 Ga. 446 (1) (111 SE2d 32) and cit.) or whether or not harmful error affirmatively appears. “ ‘The accused and his counsel have the right to be present at every stage of the proceedings and per*183sonally see and know what is being done in the case. To say that no injury results when it appears that what occurred in their absence was regular and legal would, in effect, practically do away with this great and important right, one element of which is to see to it that what does take place is in accord with law and good practice.’ Hopson v. State, 116 Ga. 90, 91 (42 SE 412); Wade v. State, 12 Ga. 25 (2)Wilson v. State, 212 Ga. 73, 74, supra; Seay v. State, 111 Ga. App. 22 (3) (140 SE2d 283) and cit. Indeed, the one possible objection which could be raised against the foregoing affidavits — that they are based in part upon hearsay statements — is the best illustration of the very basis of the right to be present, i.e., the impossibility of ascertaining the exact nature and the legality of all proceedings conducted outside the presence of the accused and his counsel.
Although . . a defendant in this State may personally waive his right to be present, or . . . his counsel may waive this right for him when the waiver is made in the defendant’s presence, [citations], ... in order for the waiver of counsel to be binding on the defendant, it must be made in his presence or by his express authority, or be subsequently acquiesced in by him.” Wilson v. State, 212 Ga. 73, supra, pp. 75, 77. It is true that the last paragraph of the Wilson decision shows facts different from those in this case, but the principle is the same. There is nothing to show that the defendant ever knew of the illegal procedure indulged in in this case, either before or after it occurred. It can be most reasonably presumed that the defendant was not being entertained in the judge’s chambers when the deputy sheriff entered to convey the message from the jury. The defendant might not have been in the courtroom. It can be reasonably presumed that the attorneys for the defendant did not tell the defendant what had happened because they could see no reason to do so. It might be reasonably presumed that the defendant was informed of the facts and that he took no action either personally or through his attorneys which would show objection or acquiescence to the illegal procedure. We note here that the defendant in such a case must himself refuse to waive the defects in the procedure *184(not a mere irregularity). From the cases cited in Wilson, 212 Ga. 73, supra, attorneys have no right to waive the illegal procedure for their client. What I have just said is not idle scribbling. “ [A] party is not to be held, on slight grounds, to waive his statutory rights.” Taylor v. Holland, 20 Ga. 11, 14. “Waiver, in fact, is a matter of proof. Its very basis is intent, and unless the facts show knowledge, and are such as to make the inference of intent natural and free from doubt, the presumption of waiver from an act ought not to arise.” McLean v. Clark, 47 Ga. 24, 73. A clear and distinct intention to waive must appear. Martin v. State, 51 Ga. 567; Simmons v. Martin, 52 Ga. 570 (3); Simmons v. Martin, 54 Ga. 47, 48 (5). In Hopson v. State, 116 Ga. 90, supra, at p. 91, this court stated: “There was no waiver of the right of the accused and his counsel to be present when the second charge was given. It does not appear that both were ignorant of its being given until after the trial had ended; but this makes no difference. It is an inevitable conclusion from the cases cited above that the accused may complain of such an irregularity after verdict, notwithstanding knowledge thereof by him or his counsel while the trial was in progress.” (Emphasis supplied.) While mere irregularities in judicial proceedings may be waived (Beall v. Blake, 13 Ga. 217 (1) (58 AD 513)), the conduct presently under scrutiny is shown by Hopson v. State, supra, to be a complete defect which totally invalidates the proceedings, which can not be waived. Bell v. Blake, supra, (2, 3). “Moreover, the United States Supreme Court has held that every reasonable presumption will be indulged against the waiver of fundamental constitutional rights by one charged with crime.” (Emphasis supplied). 21 Am Jur2d 259, Criminal Law, § 219.
What is more, if the defendant waived anything in open court the State should show it. Once the accused shows to the court facts which prima facie constitute a deprivation of his constitutional rights, the burden then shifts to the State of showing waiver, which is a matter of proof. McLean v. Clark, 47 Ga. 24, 73, supra. It might be said that the accused must show error and harm in order to obtain a reversal. Hopson v. State, supra, and other cases cited in Wilson v. State, 212 Ga. *18573, supra, hold this to be unnecessary, as we have hereinabove shown. Even if it were required, however, who knows whether there was harm done by the conduct of this case? Events went from a question about parole, which indicated a possibility of a verdict for voluntary manslaughter, to a very quick death sentence, in the absence of an instruction from the judge. A proper instruction from the judge could have led the jury to a verdict for voluntary manslaughter if the jury followed the instruction of the judge and had found voluntary manslaughter in the exercise of its obligation to render a verdict authorized by the evidence regardless of whether they could let the idea of parole deter them from their duty. Since the harm is presumed, however, the above speculation is irrelevant. The case of Dutton v. Morris, 222 Ga. 595 (151 SE2d 125), which puts the burden of proof of no waiver of presence on the prisoner in a habeas corpus proceeding, is not contrary to this holding, since such proceeding is a civil action, in which the prisoner has the burden ab initio of proving his wrongful detention.
While there is nothing to show a waiver by the defendant and what I am about to say is not necessary to a decision in this case if I am right about there being no waiver by the defendant himself, yet, if the defendant had endeavored to waive the illegal procedure, the public policy of this State prevents it. The rule is not merely made for the benefit of the accused. It is a State policy against the worst offense against a constitutional right of a defendant on trial for a crime. In such a case as this the violation of the right here involved can not be waived by a defendant because no one can waive the rights of the State in its strict policy of guaranteeing fair trials.
It seems to us that the principle that the accused has the right to be present at every stage of the trial encompasses a prohibition against any secret communication between the trial judge and the jury. While it may be true that the court could not have charged the jury on the subject of parole, the proper procedure would have been for the jury to communicate with the judge only, to advise him that it had a question to propound to him and for the court to call the jury back into the box and inquire of them what its question was, and then to make what*186ever remarks he thought to be appropriate, all in the presence of the jury, the accused and the public attending the trial. This requirement is at the top among the priorities in the State’s public policy in the guarantee against star chamber proceedings in a trial involving a man’s life or liberty. It matters not that the subject matter of the communication is known. The next time it may not be known and could be devastatingly harmful. This kind of thing should be stopped at the threshold the minute it comes to light. To condone what was done in this case would open the doors to the worst kinds of abuses, both intentional and through honest misunderstandings. A new trial should be granted.