¶1(concurring). The court, in the exercise of its discretion, had ordered the jury to be kept together during the trial. I concur in, the judgment of reversal on the ground that the action of the court in allowing the juror to separate from his fellow-jurymen was a substantive step in the trial. Under the common law, it is the right of the defendant on trial for a felony to be present when any substantive step is taken by the trial court in his case, and this rule is adhered to in this State, with certain exceptions under the statute, which it is not necessary to notice here; for the defendant was confined in jail, and his absence was enforced.
¶2In the case of Bearden v. State, 44 Ark. 331, Chief Justice Cockrill, speaking for the court, expressed the view that the swearing of the witnesses and putting them under the rule in a capital case in the absence of the defendant was a violation of his rights.
¶3Subsequently, in the case of Kinnemer v. State, 66 Ark. 206, the court held that it is error in a felony case for the court, in defendant’s absence, to reread the instructions to the jury, at their request, though they are read exactly as at first given, since the defendant had a right to know that such was the case, and to be present for that purpose. See also Stroope v. State, 72 Ark. 379. Likewise, I think the action of the court in permitting a separation of the jurors was a substantive step in the trial of the case.
¶4It is true that the separation of the jurors was a matter within the discretion of the court, but any proceeding that is the subject of judicial discretion is susceptible to abuse. A case might arise in which the defendant would be in possession of facts and circumstances which, if imparted to the court, would influence it in the exercise of its discretion; at least, the defendant has a right to be present to see for himself that the court does not abuse its discretion.