majority">Chalmers, J.,

delivered the opinion of the court.

The record fails to show the presence of the prisoner when the motion for a new trial was heard and determined. It has *299been held by this court that his presence must affirmatively appear at the disposition of such motions, though the rule in other States is conflicting. Roll’s Case, 52 Miss. 391.

The law in this respect is now changed by the act of February 12, 1878 (Sess. Acts, 200), but this trial was had before that law took effect, and we will not give it retroactive operation, though it is by no means clear that, as prescribing simply a rule of action in this court, it should not be applied to all judgments rendered here after it went into effect, without regard to the date of the trial in the court below.

The action of the court in the legally presumed absence of the prisoner must, therefore, be treated as a nullity, and the motion for a new trial regarded as still pending and undetermined in the court below. That motion being undetermined, it was of course erroneous to pass judgment final in the case. The judgment will therefore be reversed and the cause remanded, in order that the motion for a new trial may be properly acted on in the presence of the prisoner. City of Vicksburg v. Hennessey, 52 Miss. 178.

Should a new trial be refused, the prisoner will have the right to sue out another writ of error, the present one having been prosecuted before there was a proper final judgment in the court below. Stokes v. Shannon, 55 Miss. 583.

The reversal of the judgment will not affect the verdict.

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