In commenting on and applying this provision of the Constitution, we, in Allen v. Com. 86 Ky. 642, 6 S. W. 645, quoting with approval from the opinion in the earlier case of Temple v. Com. 14 Bush, 769, 29 Am. Rep. 442,-said of it: "The right to be heard by himself and counsel

embraces the right

to be present himself, and to have a reasonable opportunity to have his counsel present, also, at every step in the progress of the trial, and to deprive him of this right is a violation of that provision of the fundamental law."

The imperativeness of the requirement rendering necessary the presence of the accused during the trial of a felony is also declared by the Criminal Code, §§ 183-229, the first providing: "If the indictment be for a felony, the defendant must be present, and shall remain in actual custody during the trial; unless his bail appear personally in court, and consent that he remain

on bail, in which case he shall be placed in actual custody when the case is finally submitted to the jury. If he escape from custody after the trial has commenced, the trial may either be stopped, or progress to a verdict, at the discretion of the commonwealth's attorney; but judgment shall not be rendered until the presence of the defendant is obtained."

Section 229, supra, begins and ends with the following brief declaration: "During the trial of an indictment for felony, the defendant shall be committed to and remain in the custody of the proper officer."

It is patent that the provisions of this section do not conflict with those of § 183, supra, nor in any respect qualify the provision of that section making imperative the presence of the defendant during the trial, which must be observed, though he remain on bail; but, as § 183 contains no provision indicating in what manner the actual custody of the defendant shall be maintained or enforced during the trial, if ordered by the court because of the failure of his bail to personally appear in court and consent that he remain on bail, § 229 doubtless was enacted to supply that omission, by providing, as it does, that, in case the actual custody of the defendant be required during the trial on account of the failure or refusal of his bail to consent that he remain on bail, he "shall be committed to and remain in the custody of the proper officer;" that is, the jailer or other officer of the court charged by law with that duty.

The words "during the trial," appearing in each of the sections supra, have in numerous cases decided by this court been held to embrace all stages of the trial, which, as declared, "begins with the swearing of the jury and ends when the verdict is returned." Willis v. Com. 85 Ky. 68, 2 S. W. 654; Allen v. Com. supra; Collier v. Com. 110 Ky. 516, 62 S. W. 4; Temple v. Com. supra; Tye v. Com. 3 Ky. L. Rep. 59; Kokas v. Com. 194 Ky. 44, 237 S. W. 1090. Also see Cooley, Const. Lim. p. 319.

There are other sections of the Criminal Code yet to be mentioned, equally as mandatory as those already considered, that have a direct bearing on the conduct and duties of the jury, the trial court's control of and power over them, and also upon the rights of the defendant when and while on trial for a felony. One of the sections referred to is 244, which provides: "On the trial of offenses which are or may be punished capitally the jurors, after they are accepted, shall not be permitted to separate, but shall be kept together, in charge of the proper officers.

Section 245 directs that, when the jury is required to be kept together, it shall be in charge of officers sworn "to keep [them] together, and to suffer no person to speak to, or communicate with, them on any subject connected with the trial, and not to do so themselves." By § 246 it is provided: "The jury, whether permitted to separate or kept in charge of officers, must be admonished by the court that it is their duty not to permit anyone to speak to, or communicate with, them on any subject connected with the trial, and that all attempts to do so should immediately be reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, nor form, nor express, any opinion thereon, until the cause be finally submitted to them. This admonition must be given or referred to by the court at each adjournment."

If, after the submission of the case to the jury, and during their deliberations before reaching a verdict, the necessity for a communication or conference between them and the court should arise, the place and manner of bringing jury and court together for the purposes of such conference or meeting are preare prescribed by § 249, which provides: "After the jury retires for deliberation, if there be a disagreement between them as to any part of the evidence, or if they desire to be inforined on a point of law, they must require the officer [in whose care they are] to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties."

The counsel here referred to are the commonwealth or county attorney representing the commonwealth and the attorney representing the

defendant on the trial. And, while § 249, supra, does not, in words, declare that the presence of the defendant at such a conference or meeting between court and jury as is therein provided for shall be necessary, his right to be then present cannot be affected by the failure of that section to give it recognition; for, as previously remarked, this right of the defendant to be present, and have his counsel present, during the trial and at all stages thereof, is one guaranteed by the Constitution and declared by § 183, Crim. Code; therefore, its reiteration by § 249 was unnecessary. The uncontroverted facts appearing of record clearly show not only that the meeting and conference between the court and jury complained of in this case took place in the jury room after its submission, in the absence of and without notice to counsel for the appellant or the commonwealth, but also that it neither resulted from, nor was rendered necessary by, any "disagreement of the jury as to any part of the evidence," desire on their part to be "informed on a point of law," or any communication from them to the court. In view of the showing made by the record, it is manifest that in thus meeting, conferring with, and advising the jury with respect to their duties in the matter of arriving at a verdict, the trial court disobeyed the mandatory provisions of the Constitution and Criminal Code, supra, and thereby deprived the appellant of a highly important constitutional right.

It is insisted, however, by counsel for the commonwealth, that though the trial court, in the matter of thus entering the jury room and advising the jury as to their verdict, without the consent and in the absence of appellant and his counsel, may have committed error, the appellant was not thereby prejudiced in any substantial right; hence, the error of the court furnishes no ground for the reversal of the judgment. The unsoundness of this contention lies in its unauthorized assumption that the jury were in no wise influenced,

nor their verdict affected, by what was said to them by the court.

In considering what took place between the trial court and jury in the latter's room, it will be but fair to the court and just to the appellant to confine ourselves to the statement written by the former in the bill of exceptions as to what there occurred, and such inferences or conclusions as may reasonably be deduced therefrom. It is fairly inferable from the statement that the trial judge's visit to the jury room. was not in response to a request or communication received by him from the jury, and apparent from the inquiry made by him of the jury upon entering the room that the object of his visit was to ascertain from them whether they had agreed upon a verdict, and, if they had not, to assist and hasten them in doing so. When informed by the jury that they had not agreed upon a verdict, the trial judge seemed to assume, though without information from them authorizing it, that the jury were not disagreeing as to the appellant's guilt, but as to the punishment he should receive. Whereupon he proceeded to orally instruct or advise them in respect to their duties in arriving at a verdict, as set forth in his statement appearing in the record, the language of which is so ambiguous as to render its meaning confusing. This is notably true of that part of the statement which, in attempting to point out the difference in the situation presented where the jury "are disagreed as to the question of guilt or innocence" and that presented where they "are disagreed as to penalty," failed to define such difference, or to advise the jury as to the course of conduct they might properly pursue in either situation, in order to remove the disagreement and arrive at a verdict. The subsequent sentence, declaring what in every case should govern the juror in determining whether he will subscribe or agree to a verdict, while correct in the abstract, threw little,

if any, light upon the meaning of the language immediately before employed.

The closing words of the trial judge's statement to the jury, substantially informing them that they would have to be kept together and not permitted to separate until they found and returned a verdict (to which, he admits, he may have added the words "locked up," after the words "kept together"), could have been but a repetition, in substance, of what it will be presumed he, in the performance of his official duty, said to them in open court when the case was submitted; hence, the reminder to them in the jury room was inopportune and unnecessary. sides, connected as it was with the unsolicited and, to the jury, unexpected visit of the trial judge to their room, and the other statements made by him to them while there, Appeal-crimiits probable effect upon the jury was prejudice from to shorten their room. deliberations, and

Be

nal law-presumption as to visit to jury

thereby so hasten the verdict as to prevent them from giving it the maturer consideration it otherwise would or might have received.

As it appears from the record that the trial judge's visit to and interview with the jury in their room occurred within, or not later than, an hour after the submission to them of the case, it is patent that their deliberations looking to a verdict had not then extended beyond an hour; and, as this was not an unreasonable or unusual time for a jury to consume in considering, after its submission to them, a case involving a charge of felony, without arriving at a verdict, no reason is apparent for the apprehension of the trial court that they were so disagreed as to make a verdict improbable, or would unnecessarily consume time in further efforts to agree upon a verdict, that should be devoted by them to the consideration of other cases awaiting trial by jury. It would seem, therefore, that there

was no justifiable cause for the impatience of the trial judge for an immediate verdict, which evidently manifested itself to the jury during his conference with them in their

room.

-violation of constitutional rights-preju

dice.

It could not have been contemplated by the makers of the Constitution that the question as to whether a defendant on trial for a felony has been prejudiced in a substantial right by the failure of the trial court to obey the mandatory provision of that instrument, conferring such right and guaranteeing its enjoyment, should be left to conjecture or speculation. The rule declared in this jurisdiction for determining that question makes the deprivation of the constitutional right prima facie prejudicial. This rule is recognized in Meece v. Com. 78 Ky. 586, relied on by counsel for the commonwealth. In that case the defendant, though charged with murder, was convicted of voluntary manslaughter, the punishment inflicted being imprisonment for twenty-one years in the penitentiary. One of the grounds urged for the reversal of the judgment of conviction was alleged error of the trial court, committed after the submission of the case to the jury, in adding to an instruction by interlineation in the absence of the defendant, but in the presence of his counsel, certain words properly explanatory of its meaning, which was done at the request and in the presence of the jury, following their return to the court room. Although it is conceded in the opinion of this court that "the presence of the accused, when instructions are given or modified, is essential to the ends of justice," and that the action of the trial court in making the addition to the instructions in the absence of the defendant was error, it nevertheless affirmed the judgment of that court for the reasons stated in the concluding part of the last paragraph of the opinion: "One charged with the commission of a

felony cannot be tried during his absence from the court room, and, when any step is taken during the trial in the absence of the prisoner, the record must show affirmatively that he could in no wise have been prejudiced by it, else this court will reverse the judgment. The evidence in this case is so plain as to the guilt of the accused, and the enormity of the offense, that no slighter punishment could have been inflicted, and we are satisfied the ends of justice require that the judgment should be affirmed." The principal reason advanced by the above excerpt from the opinion, for the court's conclusion that the defendant could not have been prejudiced in any substantial right by the error of the trial court in question in that case, is wholly inapplicable to the instant case, in which the evidence found in the record is too conflicting to enable us to say that it established the appellant's guilt of the offense charged, with the unerring certainty that seemed apparent to the court in the case supra. Although it appears from the opinion, supra, that the defendant's counsel was present when the trial court made the addition to the instructions, and that he made no objection thereto, it is nowhere intimated in the opinion that his presence obviated the necessity for the defendant's presence, or that it authorized the court to make the addition to the instructions in the latter's absence. It, however, reiterates the necessity for the defendant's presence at every step taken in his case during the trial, and gives emphasis to the fact that the taking of any step during the trial in his absence will compel the reversal of the judgment, unless it be affirmatively shown by the record that he could not have been prejudiced by it.

In Kokas v. Com. 194 Ky. 44, 237 S. W. 1090, there was a reversal of the judgment of conviction because. of error committed by the trial court, in the absence of the defendant, after the submission of the case and while the jury were deliberating