(dissenting).
I respectfully dissent. I join in condemning the trial court’s refusal to accord defendant his right to be present in open court at the time the communication was forwarded to the jury. But I believe the record affirmatively shows defendant was not prejudiced by the error.
It was error for the trial court to answer the inquiry of the jury outside defendant’s presence. It is of no importance whether the communication is called an answer to a jury question or an instruction. See 75 Am.Jur.2d, Trial, § 1001, pages 842-844. The effect of such an error is rightly set out in the majority opinion: “ * * * [S]uch absence gives rise to a presumption of prejudice necessitating reversal unless the record affirmatively shows the instruction had no influence on the jury’s verdict prejudicial to the defendant.”
The record shows the jury was given a correct answer to their inquiry on a point of law. The majority makes no suggestion the communication was in error, only that it *223was given in error because of defendant’s absence. There is not the slightest suggestion the communication could or would have been improved or in any way altered had defendant been present. His counsel of course was present. Finally the record is clear the jury was unaware defendant was absent when the communication was forwarded.
I do not take lightly the violation of the statutes cited by the majority, both of which required defendant’s presence. But I cannot believe defendant should be given a new trial when I can imagine no way in which the error affected the outcome of his first trial.
I would affirm.