The trial resulted in a verdict and judgment for murder in the first degree, and the death penalty was imposed.
Errors urged in argument of counsel present for review the refusal of defendant's requested charges and matters presented on the motion for a new trial and supported by affidavits.
There was no reversible error in the refusal of charge No. 5. It did not present the probability of the innocence of the defendant, which was the subject of charge 6 in Whitaker v. State,
Defendant's charge 51 was refused without error. It was misleading or involved in the instruction, as to defendant's belief of his imminent peril, so impressed upon him by the attendant circumstances warranting that belief, and as it affected his duty, ability, or reasonably apparent inability to retreat under the rule. The charge was not presented for approval in McClusky v. State,
Charges made the subjects of consideration in Glass v. State,
Appellant insists that the refusal of charge 58 was error, for that the charge was in the language of charges heretofore approved by this court. In Glass v. State,
In the instant case the defendant and deceased were in the street, and the rule of retreat obtained at such place. The case of Davis v. State,
Defendant urges that refused charge 59, on reasonable doubt, should have been given. When the other given charges and oral instructions are considered, they sufficiently define a "reasonable doubt." We will not reverse for the refusal of this charge.
We are brought to a consideration of the situation presented by the motion for a new trial, which is supported by affidavits. This is the only way the matter could be brought to the attention of the court under the facts set out in the affidavits. The substance of the affidavits is indicated in the statement of facts.
Without a due observance of the right of argument, or a proper restraint of counsel not observing the same, constitutional guaranties are not accorded. The duties of counsel in argument have been fully indicated in recent decisions: Moulton v. State,
In view of the importance and only method of presentation of the objection made to argument of state's counsel and the exception sought to be secured and reserved by defendant's counsel, we here make observation of an obvious fact as to the due conduct of a court in session and in the trial of a cause — civil or criminal. That is to say, it is the duty of the presiding judge, at all times (unless under circumstances or at a time when his presence may be and is waived) during the progress of a trial — of which the argument to the jury is an important part of due process — to remain on the bench and in the presence and hearing of the trial and argument to the jury, to see that the trial proceeds in an orderly manner and in accordance with law.
In 16 C. J. p. 812, § 2061, the general rule, well supported by authorities, is thus stated: "In prosecutions for felonies the great majority of cases lays down the general rule that the continued presence of the judge during the entire course of the trial is essential to the validity of the proceedings, and that his absence during any part of the trial, such as during the examination of a witness, during the argument of counsel, or at the handing in of the verdict (Waller v. The State,
The reasons for this rule are stated by the Iowa court, as follows: " 'There can be no court without a judge, and his presence, as the presiding genius of the trial, is as essential at one time as another. The argument is an important part of the proceedings, during which the judge cannot properly absent himself. He should remain within hearing, that he may not even temporarily relinquish control of the proceedings and the conduct of the trial. This is necessary to enable him to intelligently review the proceedings on motion for new trial.' State v. Carnagy,
When the affidavits supporting the motion for new trial are considered, it is apparent that the case should be retried in the respects provided by law. This case is not within the facts of and the holding in Thomas v. State,
The judgment of the circuit court is therefore reversed, and the cause remanded.
Reversed and remanded.
All the Justices concur.