¶1(dissenting).
¶2In the opinion prepared for this court by Judge HARWOOD the following appears :
¶3• “… the continuous presence of the accused from arraignment to sentence is an essential part of the process of trial and without which the courts have no jurisdiction to pronounce judgment upon him. Conformity to this rule is jurisdictional. … Under such circumstances there can properly be no application of the doctrine of error without injury.”
¶4The effect of the holding, as I interpret the statement, is that in all criminal prosecutions when it is established that the defendant was not continuously present at every stage of the proceedings from arraignment to sentence, this is the end of: the matter. No inquiry is permitted to determine whether or not the substantial rights of the accused were' in any manner jeopardized by what was said or'done at the time of his absence.
¶5I do not find myself in accord with this conclusion.
¶6In fairly recent cases from our Supreme Court, it was held that, in non-capital causes, the personal presence in court when the verdict is returned by the jury may be waived by the defendant. Lee v. State, 244 Ala. 401, 13 So.2d 590; Cobb v. State, 250 Ala. 496, 35 So.2d 86.
¶7Judge HARWOOD authored the opinion for this court in Huffman v. State, 35 Ala.App. 607, 51 So.2d 266, 268. He observed: “No consent of the defendant to the irregular reception of the verdict in his absence is present in this case. In fact it affirmatively appears that he did not consent.”
¶8Huffman was indicted for murder in the first degree.
¶9It has been held that, when a part of the trial proceedings was conducted in the absence of the accused, it was not harmful error and a basis for reversal if the defendant was brought into court and the same proceedings were repeated in his presence. Gable v. State, 31 Ala.App. 280, 15 So.2d 594, certiorari denied 245 Ala. 53; 15 So.2d 600; Ferguson v. State, 24 Ala.App. 491, 137 So. 315, certiorari denied 223 Ala. 521, 137 So. 317; Kelley v. State, 32 Ala.App. 408, 26 So.2d 633.
¶10If we adhere to Judge HARWOOD’S view the case of Cooper v. State, 31 Ala.App. 356, 18 So.2d 420, certiorari denied 245 Ala. 639, 18 So.2d 423, must be overruled.
¶11In the absence of the defendant the trial judge went into 'the jury room and gave specific instructions with reference to the manner of fixing punishment. We applied Supreme Court Rule 45 and held that under the circumstances no injury inured to the accused. On certiorari the Supreme Court denied the writ without an opinion.
¶12Judge HARWOOD anchors his views on the holdings in Neal v. State, 257 Ala. *7496, 59 So.2d 797, and Chaney v. State, 36 Ala.App. 374, 56 So.2d 385. Both of these prosecutions involved capital crimes.
¶13In the Neal case Justice Stakely states: “It is settled that the continuous presence of the defendant from arraignment to sentence is an essential part of the process provided for the trial of the defendant and without which the court has no jurisdiction to pronounce judgment against him.” [257 Ala. 495, 59 So.2d 798.]
¶14It may be noted that the statement does not exclude non-capital cases.
¶15Clearly there are reason and logic in Judge HARWOOD’S view when based on this general statement of Justice Stakely.
¶16The authority must be taken and construed in the light of its factual foundation.
¶17I do not feel that we are compelled to follow the general statement in the Neal case, since we are here concerned with a non-capital case.
¶18It is interesting to note that Justice Stakely reviewed the Cooper case, supra, when it was before the Supreme Court on certiorari.
¶19Judge HARWOOD quotes from Robert Burns.
¶20Lord Coke said: “Reason is the life of the law; nay the common law itself is nothing but reason.”
¶21I do not recall who said this: “What is just and right is the law of laws.”
¶22“Cessante ratione legis, cessat et ipsa lex.”
¶23Judge HARWOOD set out in full the trial judge’s statement.
¶24I will not attempt to analyze the effect of the circumstances as they relate to the substantial rights of the accused. I am clear to the conclusion that there is nothing in the judge’s statement to the “two or three jurors” which could have in any manner been prejudicial to the defendant’s rights to a fair, impartial trial.
¶25- There are two other questions worthy, óf note. However, I will rest my dissent on what I have written hereinabove.
¶26The appellant’s attorney knew, before the conclusion of the trial, that the judge conversed .with the jurors at the noon recess. He made no objections during the progress of the trial, but rather speculated on the verdict and waited to raise the complaint on the motion for a new trial.
¶27I entertain serious doubt as to the essentiality of the judge’s statement to the jurors as it relates to the rule of the continuous presence of the accused.
¶28In Lee v. State, 31 Ala.App. 91, 13 So.2d 583, 589, Justice Simpson, when a member of this court, had this to say: “It is a part of our canonical structure … that a defendant must be personally present at every important step in his trial … (Emphasis supplied.)
¶29I respectfully dissent.