84 Ill. 479 | Ill. | 1877
delivered the opinion of the Court:
It is not material whether the judge of the circuit court was absent from the court room, during the trial of the cause, by consent of counsel for the defense. Neither accused ■ nor his counsel for him could consent the judge of the court, before whom the cause was being tried, might be elsewhere employed in other official duties, and the cause be presided over by members of the bar selected for that purpose. It makes no difference the judge was in another part of the same building. It is no less error than if he had been in another county. Where the judge is engaged in trying causes, there is the court, and he can hold no court elsewhere, by proxy, at the same time.
The argument of a cause is as much a part of the trial as the hearing of evidence. It is a right in his defense, secured by the law of the land, of which a citizen can not be deprived. On two different days, members of the bar presiding assumed to exercise judicial functions by ordering adjournments of court. This court has decided, in two civil cases, a member of the bar, even with consent of parties, can not exercise judicial powers under our constitution, and that to do so,' where it appears in the record, is error of such gravity as will warrant a reversal of the judgment rendered. Hoagland v. Creed, 81 Ill. 506; Bishop v. Nelson, 83 ib. 495; Cobb v. The People, post, p. 511. The decision is not affected by the consideration the judge was present a part of the time during the argument of the case. If he could be absent during any part of the trial, and his official duties could, during such time, be performed by a member of the bar, on the same principle his absence during the entire trial might be justified.
Serious misconduct, it is insisted, was permitted in the presence of the jury," hurtful to the cause of defendant; but, whether that is so or not, the absence of the judge from the court room, engaged in other judicial labors, for a part of two days, in a trial of this magnitude, can not be justified on any principle or for any cause. It is not allowable in a trial involving only mere property interests, much less in a case where the life of a human being depends upon the issue.
Accused has had no such trial as the constitution guarantees to every person charged with crime, and hence the conviction can not be permitted to stand.
The judgment will be reversed and the cause remanded.
Judgment reversed.