(dissenting).
In this case the defense counsel was not present when the judge commented on the evidence and reinstructed the jury. Whether the defendant was present at this time or not, the record does not disclose.1 In this dissent, I assume defendant was present since the record shows him to have been present in court that day and, this being so, he is presumed to be present when the disputed statement and instruction was made and given. Gallagher v. People, 211 Ill. 158, 71 N.E. 842 (1904). Error dismissed 203 U.S. 600, 27 S.Ct. 779, 51 L.Ed. 334 (1906).
Assuming the presence of the defendant, it was, in my opinion, nevertheless, fundamental and thus reversible error for the trial court to reinstruct and comment upon the evidence in the absence of defense counsel since an accused is entitled to representation by counsel whenever necessary for a meaningful defense. United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, *35218 L.Ed.2d 1149 (1967). An indigent accused in Wyoming is entitled to the presence of counsel at all stages of the trial. Section 7-9.2, W.S.1957, 1975 Cum.Supp.2
Since the fundamental question here is not the right of the defendant to he present, but his right to be represented by counsel at all stages of the trial, the defendant’s presence is, in my judgment, irrelevant. Therefore, the many cases available dealing with the absence of defendant and counsel during the court’s communication with and reinstruction of the jury are applicable.
There is a significant amount of law condemning reinstruction in the absence of both the defendant and his counsel. The Supreme Court’s view was articulated in a civil case, Fillipon v. Albion Vein Slate Co., 250 U.S. 76, 81, 39 S.Ct. 435, 436, 63 L.Ed. 853 (1919), which held that, where the jury has retired, supplemental instructions can be given only in the presence of counsel, or after notice and opportunity to be present, and it was reversible error for the judge to send a private written note to the jury to answer their questions. The Court, in Shields v. United States, 273 U.S. 583, 588-589, 47 S.Ct. 478, 71 L.Ed. 787 (1927), observed that the Fillipon rule is especially applicable to a criminal case, and it was reversible error for the judge to communicate to the jury, after the jury had retired, in the absence of defendant and his counsel.
Modern cases continue to hold that it is reversible error for the judge, in the absence of the defendant and his counsel, to communicate with the jury after it has retired for deliberations. Ah Fook Chang v. United States, 9 Cir. 1937, 91 F.2d 805; United States v. Schor, 2 Cir. 1969, 418 F. 2d 26; United States v. Marken, 9 Cir. 1972, 457 F.2d 186; and Roberts v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975).
Some courts hold that there is a presumption of prejudice associated with the judge’s communication with the jury after it has retired when counsel and defendant are not present. Rice v. United States, 8 Cir. 1966, 356 F.2d 709, 717. In Rice, the trial court, in response to a question from the deliberating jury, gave an “Allen” instruction.3 Since the presumption of *353prejudice was not rebutted, this was found to be reversible error.
Similarly, I would hold, in the instant case, that the giving of the “Allen” charge, coupled with the judge’s comment about the evidence to the jury when defense counsel was not present, constitutes prejudicial error. Prejudice for me is indicated by the fact that the jury thought there was “lack of evidence” (which may have meant insufficient evidence to support a guilty verdict), and then went on to find the defendant guilty after the reinstruction and the court’s comment that “There is evidence.”
It appears from an affidavit outside the record that a young lawyer who had been observing the trial as a spectator was asked by trial counsel to stand by during jury deliberations in trial counsel’s absence ; that this substitute attorney was present when the court was advised by the jury that it was having difficulty; and that she was present when the judge communicated with the jury. There is nothing in the record to show that this substitute counsel responded or reacted in any way to any action the judge proposed to take or did take. However, this did not serve to fulfill the defendant’s constitutional right to counsel.
In People v. Valentine, 45 A.D.2d 1043, 358 N.Y.S.2d 175 (1974), a conviction was reversed due to the absence of counsel during the original instruction of the jury, despite the fact that there was present a substitute counsel. The court said:
“It was error for the court to have permitted trial counsel to absent himself during the charge to the jury. The defendant was harmed by the failure of counsel’s substitute to request a charge, recognizing the ambiguity of evidence of flight and instructing the jury as to its weakness as an indication of guilt (People v. Yazum, 13 N.Y.2d 302, 304, 246 N.Y.S.2d 626, 627-628, 196 N.E.2d 263, 264).”
Whether the instruction and remarks were made in the presence of the defendant or not — they were in fact made when the defendant was required to stand alone before the Bar of Justice at a critical stage of his trial when the judge was communicating with and reinstructing the jury. He was — in my judgment — at this stage of the proceedings, denied the meaningful defense to which he was entitled under the Constitutions of the United States and Wyoming, and the Statutes of this state.
The Sixth Amendment to the United States Constitution4 guarantees a defend*354ant his right to counsel at all “critical” stages of the proceedings. United States v. Wade, supra. In giving interpretation to Rule 43 of the Federal Rules of Criminal Procedure, which is analogous to our § 7-9.2, where a jury inquiry was responded to by the judge when defense counsel was not present, the United States Supreme Court said in Rogers v. United States, supra, at page 2095 of 95 S.Ct.:
“. . . Federal Rule Crim.Proc. 43 guarantees to a defendant in a criminal trial the right to be present ‘at every stage of the trial including the impaneling of the jury and the return of the verdict.’ Cases interpreting the Rule make it clear, if our decisions prior to the promulgation of the Rule left any doubt, that the jury’s message should have been answered in open court and that petitioner’s counsel should have been given an opportunity to be heard before the trial judge responded. See, e. g., United States v. Schor, 418 F.2d 26, 29-30 (CA2 1969); United States v. Glick, 463 F.2d 491, 493 (CA2 1972).”
In United States v. Gay, 6 Cir. 1975, 522 F.2d 429, 434-435, where the court excused jurors impaneled and sworn in the absence of the defendant and his lawyer, the court said:
“Appellant concedes that it is permissible for a trial judge to hear requests out of the presence of counsel from prospective jurors wishing to be excused from jury service. Wright, Federal Practice and Procedure, § 384. He insists, however, that once the jury has been selected and sworn it is error for the court to excuse a juror without ‘notice to the defendant or his counsel arid without explanation . .’
“We hold that it was error for the District Judge to engage in discussions with members of the jury after it was impaneled and to consider requests for excuses out of the presence of the defendant and without giving notice to defense counsel . . . The defendant
should have an opportunity to object to requests for excuses from the jury and to make a record of the proceedings
In my judgment the error was anything but harmless — it was fundamental. It was fundamental because the defendant was denied his constitutionally-guaranteed right to a fair trial for the reason that he was deprived of counsel at a critical stage of the proceedings.
The need for learned counsel when a jury returns to the court such a message as “We cannot reach a verdict due to the lack of evidence,” is unusually imperative. Nobody can know for sure what that message means. Nor can anyone know for sure how the judge was interpreting the message when he returned the jury to its deliberations with the admonition:
“. . . You have commented that to this point you feel there is a lack of evidence. There is evidence. Please reconsider the evidence in this case . . .”
At this point the outcome of the trial, and therefore the future of the defendant, hung finely in balance. Was the jury saying that there was a “lack of evidence” to convict? And was the judge assuring the jury that there was not a lack of evidence to convict? What did the jury mean by “lack of evidence?” Who knows? We will never know!
Under the law I have cited in this dissent, I feel it was fundamental error to cause the defendant to stand alone during these critically important and technical proceedings without counsel and advice. His liberty and freedom were at stake at a time when the skills of his lawyer were desperately needed. He was denied these skills — I think — to his prejudice.
I would have reversed.
McCLINTOGK, J., .joins in dissent of ROSE, J.
. The Wyoming Statutes, § 1-128, W.S.1957, provide in pertinent part that when the court reinstructs the jury after it has retired, the communication must be made “in the presence of, or after notice to, the parties or their counsel.”
. “§ 7-9.2. Right to attorney; cost; other rights. — (a) A needy person who is being detained by a law-enforcement officer, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, is entitled:
“(i) To be represented by an attorney to the same extent as a person having his own counsel is so entitled; and
* * * * ⅜*
“(c) A needy person who is entitled to be represented by an attorney under subsection (a) of this section is entitled:
“(i) To be counseled and defended at all stages of the matter beginning with the earliest time when a person providing his own counsel would be entitled to be represented by an attorney and including revocation of probation or parole;”
. If defense counsel had been present he might have wanted to have something to say about the giving of the “Allen” instruction. We said in Elmer v. State, Wyo., 463 P.2d 14, 21-22, reh. den. 466 P.2d 375:
“ . . . Numerous cases are cited referring to or discussing various instructions which point out to the jury the desirability and necessity of the individual jurors considering the views of the others in arriving at a verdict. Counsel designate such instructions by several names, notably the ‘Allen’ charge, since an instruction along that line was approved by the United States Supreme Court many years ago. Allen v. United States, 164 U.S. 492, 501-502, 17 S.Ct. 154, 41 L.Ed. 528. Counsel concede that such instructions have usually been upheld both in Federal and state courts but insist that in the light of the emphasis on the preservation of constitutional rights in recent United States Supreme Court cases reconsideration should here be given to the matter. In so doing, they refer to and discuss a certain fictional moving picture and divers law review articles. While in this instance we perceive no occasion for the trial court to have given the instruction when the jury had been out less than eleven hours, including the time for meals and incidental activities unconnected with a co-sideration of the cause, we are presented with nothing to show that the instruction was either unconstitutional or improper. *353An instruction similar to portions of the one in issue was approved by this court in Harris v. State, 2S Wyo. 487, 153 P. 881, 889, Ann.Oas.l917A 1201, and an identical instruction was approved in Nicholson, v. State, 24 Wyo. 347, 157 P. 1013, 1015-1016. Undoubtedly the trial court relied upon, its propriety as it was justifed in, doing, and no prejudice resulted to defendant. In so saying, we do not commend or even approve the giving of this type of instruction after the jury has been engaged in deliberation. Such would seem unnecessary since the finders of fact undoubtedly understand, if their instructions have been proper, what they are expected to do, and there would seem no occasion either to coddle or direct them further. Additionally, the singling out of any instruction over others lacks full accord with the universal principle that the instructions should be read and considered together. State v. Jackson, 75 Wyo. 18, 291 P.2d 198, 803. Although, as we have indicated, the United States Supreme Court in recent decisions has declined to reverse because the instruction was given, there has throughout the Nation been a growing tendency to criticize the practice for various reasons. Judge Murrah in a recent case, United States v. Wynn, 10 Cir., ⅛15 F.2d 185, 137, suggests that if such an instruction is given it should be incorporated with the other instructions. All this leads us to say that what little benefit to the proper administration of justice might result from the practice is far outweighed by the disadvantages.” [Emphasis supplied]
. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusa*354tion; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”