dissenting:
I dissent from that part of the court’s opinion which holds that the lower court committed reversible error when, in appellant’s involuntary absence, it complied with the request of the jury for a copy of the provisions of Maryland Code, Article 59, Section 9(a).
Quite clearly, an accused person has a common law right in this State to be present at every stage of his trial and the giving of instructions to the jury, or a repetition thereof, in whole or in part, is a stage of the trial. Brown v. State, 225 Md. 349; Midgett v. State, 216 Md. 26; Young v. State, 5 Md. App. 383.
Appellant and his counsel were both present in court when the jury was instructed by the trial judge at the close of all of the evidence. As part of its instructions, the court read to the jury the definition of insanity, as set forth in Article 59, Section 9(a). No exceptions were taken to the court’s charge and the jury retired to deliberate. It thereafter sought no additional or further instructions. It did not request any clarification, modification, or amplification of the instructions. Nor did it indicate at any time that it failed to understand the court’s instructions or was in any way confused. The jury simply asked the judge:
“May the jury have legal Code Article 59 section 9.” *552After consultation with counsel, but in the absence of the appellant, it was decided to photostat a copy of the statute and give it to the jury. It is not claimed that the copy was in any way inaccurate. Indeed, by the provisions of Section 19 of Article 1 of the Maryland Code, the document sent to the jury was part of a volume “legalized and made evidence of the Public General Laws enacted following 1957.” The court, in sending to the jury a copy of the statute, communicated nothing to the jury more than or different from that which the jury had previously been told in the presence of appellant and his counsel.
I adhere to the view, as expounded in Young, that “it is reversible error for the court to charge or instruct the jury trying the case, on the facts, the law, or the form of the verdict at any time during the involuntary absence of the defendant, even though the charge or instruction is a repetition of a charge or instruction previously given in whole or in part.” I caimot agree with the court that, within the meaning of Young, merely providing the jury with a copy of the statute previously read to them as part of the court’s instructions, constitutes a further instruction or a re-instruction “as to the law on responsibility for criminal conduct.” The court appears to base its conclusion that it was such a charge or instruction on the assumption that since the judge had previously explained the law to the jury, the jury’s request to see the statute necessarily meant that they did not fully understand the court’s instruction or desired further explanation of it, or felt it necessary to have the precise language of the statute before them in the course of their deliberations. In Maryland, the jury is the judge of the law, as well as of fact, and because it desires to have with it in the jury room the precise language of the controlling statute does not, in my judgment, transform such a simple request into a jury charge or instruction where the same statute was read to the jury as part of the court’s instructions, in appellant’s presence, and no exceptions were taken to the instructions as given.
The Maryland cases do not compel the result which the court here reaches. In Duffy v. State, 151 Md. 456, the jury specifically requested further instruction as to the form of the verdict ; and while the court gave the same instructions that it had originally given in its charge, nowhere in the opinion is the sub*553stance of the court’s instruction set out. The court there noted that it “appears that the jury did not understand the instructions given in his [defendant’s] presence, or they would not have asked for further instructions”; that “Since the jury did not understand the instructions as first given, it may have been that the prisoner, if present when they were instructed a second time, would have asked that they be made clearer, or he may have objected to their form.” Duffy then is factually inapposite to the circumstances of this case.
In Brown v. State, supra, the court, in the course of its conclusion that the accused has no right to be present when instructions to the jury are being considered by the judge and counsel for the parties in chambers, quoted with approval from Snyder v. Massachusetts, 291 U. S. 97, to the effect that the presence of the defendant, as a prerequisite of due process, goes only “to the extent that a fair and just hearing would be thwarted by his absence”; that the law “is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend”; and that “The concept of fairness must not be strained till it is narrowed to a filament.” These statements in Snyder were made against this background: The defendant alleged a denial of due process by reason of the fact that the court denied his request to be present when a “view” of the scene of the crime was taken by the jury. The jurors, bailiffs, court stenographer, the judge, the District Attorney and the counsel for the defendant, went to the scene of the crime, and the District Attorney pointed out to the jurors, with considerable particularity, the parts of the building that he wished them to see and defense counsel did likewise. The jury was told to make note of the layout of the streets and there was much discussion in the jury’s presence with respect to the physical facts of the area. In his charge to the jury, the judge stated that the “view” comprised part of the evidence before the jury. In holding that appellant has no constitutional right to be present at the “view”, the court stated that such right is available, as a matter of due process of law, only when the accused’s presence “has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge” (pp. 105-106) ; that the right of presence “may *554fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend” (p. 106); and that the Fourteenth Amendment does not assure the privilege of presence “when presence would be useless, or the benefit but a shadow” (pp. 106-107).
In Midgett, after the jury had retired to deliberate, it asked the court two questions concerning the form of its verdict, the defendant then being involuntarily absent. The court, without returning the jury to the box, and bringing the defendant back into court, sent the answers to the questions into the jury room.
In Young, the jury sent a note to the judge asking “Is wielding a deadly weapon in an assault and battery case considered an intention to kill.” While the jury was returned to the box to receive the court’s answer, neither the defendant nor his counsel were present and it was against this compelling background that we stated at p. 390 that “Intercourse between the judge and the jury as to the facts, the law, or the form of verdict would necessarily be a charge or instruction.
None of the cases relied upon by the court in my judgment provide authority for its holding that merely sending a copy of the statute to the jury, under the circumstances of this case, constituted a reinstruction or further jury charge. I am furthermore of the view that the trial judge under Maryland Rule 558, applicable in criminal cases by reason of Rule 757, has discretion to permit the jury “upon retiring for deliberation” to take with them into the jury room “such of the pleadings, granted prayers or written instructions * * * as the court may deem necessary for a proper consideration of the case.” I think the trial judge was empowered by this Rule to send a copy of Article 59, Section 9(a) to the jury whether or not requested by them, as it was, in effect, one of the instructions previously given in the case to the jury, to which no exception had been taken. I think that in exercising his discretion under this Rule, the judge’s action would not constitute a “stage of the trial” or a reinstruction under Young, requiring the presence of the appellant as a matter of law.
The court states in its opinion that even if the submission to the jury of the copy of the statute was not an instruction but only a mere “communication”, there was still reversible error *555under Midgett and Young because the record does not affirmatively show that such communication was not prejudicial or had no tendency to influence the verdict of the jury. I believe the very provisions of the statute upon which appellant was relying to establish his claim of insanity could in no event be considered prejudicial to his case, and I also believe that mere submission of the statute to the jury, under the circumstances of this case, had no tendency “to influence the verdict of the jury” in the sense that that phrase was intended to be applied in Midgett and Young.
I would therefore affirm the judgments of the lower court.