dissenting.
“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. XII].” Wilson v. State, 212 Ga. 73, 74 (90 SE2d 557). However, these rights, along with additional confrontation rights under the Georgia and United States Constitutions are not absolute and in appropriate circumstances may give way to other legitimate circumstances in the criminal trial process. Wanzer v. State, 232 Ga. 523, 526 (207 SE2d 466); Ortiz v. State, 188 Ga. App. 532, 533 (2), 535 (374 SE2d 92).
In the case sub judice the sole matter before the trial court during defendants’ absence was a question of law, the proffer from the State’s witnesses serving only to frame and define a contested legal issue. The majority of jurisdictions recognize a general rule that no claim of error, or at least no claim of prejudicial error, can be based upon the exclusion or absence of a defendant, pending the trial of his case, from the courtroom, or from a conference between court and attorneys, during argument on or discussion of a question of law. 85 ALR2d 1111, 1112, § 2; 23 ALR4th 955, 1008, § 16. As well stated almost half a century ago, “[t]he prisoner’s right of personal presence in a felony case throughout the trial from arraignment to sentence, when anything is done that can affect his interest, is an inalienable *754one. It is to be rigidly and jealously guarded. Yet, in its protection and enforcement, it must not be so enlarged as to exceed its true scope and thereby made to exclude all inquiry into and consideration of purely legal matters by the trial judge which are in fact and reality merely careful and prudent preparation for the resumption and conduct of the trial.” Williams v. Virginia, 188 Va. 583 (50 SE2d 407, 411).
Decided March 17, 1995.In the case sub judice, the trial court elected to conduct an in chambers conference with counsel, albeit the conference was actually conducted in the courtroom as a matter of logistical convenience. The matter for decision was the State’s request to present the testimony of three additional rebuttal witnesses to the jury in the absence of appellants and their co-defendant. In retrospect, we recognize that such a request could not have been granted, that the request was meritless on its face, and that the conference could have correctly led to only the trial court’s inevitable decision rejecting the State’s request. However, it is apparent that the trial court, perhaps confused by the security concerns of the witnesses related by the prosecuting attorney, did not immediately recognize the fundamental nature of the legal question before it. Being uncertain of the correct resolution of the legal issue, the trial court elected to proceed in the manner found defective by the majority.
In my view, the majority has extended the constitutional provisions at issue beyond their intended and commonly stated bounds. I would hold that a conference in chambers dealing solely with questions of law is not part of the trial in a constitutional sense. This is the rule which was at least implicitly adopted by our Supreme Court by citing a foreign jurisdiction case with approval for this proposition in Ferrell v. State, 261 Ga. 115, 122 (12) (401 SE2d 741). I would hold that the trial of the case sub judice was suspended while the trial court dealt with a question of law raised by the prosecuting attorney and that there was no constitutional error arising from the absence of appellants during consideration of that question of law. Furthermore, there was no action taken which had any material effect upon the case against appellants and their co-defendant and therefore no violation of the appellants’ constitutional rights. Andrews v. State, 196 Ga. 84, 93 (1), 94 (26 SE2d 263) (not followed as to a different issue). See also Gray v. State, 229 Ga. 808 (194 SE2d 479).
As I find no merit in the remaining enumerations of error, I would affirm appellants’ convictions. For these reasons, I respectfully dissent.
*755Richard S. Alembik, for appellant (case no. A94A2345). Mercedes Murrell, for appellant (case no. A94A2346). Lewis R. Slaton, District Attorney, Carl P. Greenberg, Anita T. Wallace, Assistant District Attorneys, for appellee.