¶1delivered the opinion of the court.
¶2Appellant was convicted of the crime of murder, and. sentenced to a life term in the penitentiary, and appeals to this court. The record shows that a witness for the. state was examined in the absence of the accused. It. appears that this witness was called to the stand and sworn, whereupon the presiding judge retired temporarily from the courtroom, and then the defendant, at his. own request, was taken from the courtroom by the sheriff to answer a call of nature. In the absence, of the defendant, the judge took the bench and the state proceeded to examine the witness, and after having finished the-examination the witness was tendered to defendant’s attorneys, and was partially cross-examined when the defendant’s absence was discovered. The court then required the state to re-examine the witness in the presence of defendant, which was done.
¶3By a long and unbroken line of decisions this court has held that the examination of a witness in the absence of the defendant charged with a capital felony is-fatal to the trial; Scaggs v. State, 8 Smedes & M. 722; *440Price v. State, 36 Miss. 531, 72 Am. Dec. 195; Stubbs v. State, 49 Miss. 716; Long v. State, 52 Miss. 23; Rolls v. State, 52 Miss. 392; Booker v. State, 81 Miss. 391, 33 So. 221, 95 Am. St. Rep. 474; Sherrod v. State, 93 Miss. 774, 47 So. 554, 20 L. R. A. (N. S.), 509; Warfield v. State, 96 Miss. 170, 50 So. 561; McLendon v. State, 96 Miss. 250; 50 So. 864; Stanley v. State, 97 Miss. 860, 53 So. 497; Sadlen v. State, 98 Miss. 401, 53 So. 783; Lee v. State, 101 Miss. 387, 58 So. 7; Doss v. State, 104 Miss. 598, 61 So. 690; It is too late to overrule these decisions and adopt a new rule. If it be true, as argued by the state, that the decisions were based on common-law principles, it would seem that the legislature has approved the rule announced by nonaction in reference thereto.
¶4We do not believe that the facts of this case bring it within the terms of- section 1495, Code 1906; if' it be conceded that the section is applicable to capital felonies. The record does not disclose that the defendant consented to the examination of the witness in his absence.
¶5On the contrary, the record clearly shows that the defendant did not know that the witness was going to be •examined while he was out of the courtroom, and the record further shows that defendant’s counsel in active control of his trial were not aware of defendant’s absence.
¶6Reversed and remanded.