Under an information charging plaintiff in error with the crime of grand larceny, he was tried, found guilty as charged, and sentenced to a term in the penitentiary.
Under the theory that the record tails to disclose the presence of the accused at any time essential to the trial, a reversal is sought for reasons specified as follows: “Because plaintiff in error was never arraigned upon the information upon which he was tried, nor called upon to enter a plea thereto, and that he has never entered any plea to said information, as is manifest of record. That plaintiff in error was not present in court when the jury was selected to try said action. Because plaintiff in error was not present in court during the tidal of said action, nor when the jury rendered their verdict finding him guilty of grand larceny.” “If the indictment is for a felony, the statute requires the defendant to. be personally present- at the trial. Rev. Code Cr. Proc. § 301. The trial begins when the jury has been impaneled and sworn. It ends when the judge has concluded his charge. Id. § 350. Where a felony is charged, the defendant is also required to be personally present at the time of arraignment, when the verdict is received, and when judgment is pronounced. Id. §§ 214, 398, 437, 444. His personal presence is not necessary at times other than those prescribed by the statute. Territory v. Gay, 2 Dak. 125,
According to the rule governing appellate procedure, the duly authenticated record and minutes of the trial cannot be contradicted in'this court, and every material recital in a judgment of conviction imports absolute verity. Wright v. Sherman, 3 S. D. 367, 53 N. W. 425; 2 Cyc. 859; Morgan v. State, 51 Neb. 672, 71 N. W. 788; Gray v. State, 63 Ala. 66; Taylor v. Commonwealth, 44 Pa. 131; People v. Rozelle (Cal.), 20 Pac. 36; Reynolds v. State (Fla.), 16 South. 78; Anderson v. Commonwealth, 100 Va. 860, 42 S. E. 865. The record affirmatively shows that the accused, when called upon to answer the information,, was present in court, and personally entered a plea of not guilty'; that the cause was brought on regularly for trial upon the issue thus raised, and he was sworn and testified on his own behalf; that the jury, after hearing all the evidence, and in the presence of the accused, returned into court and delivered its verdict. The pi’esumption that the defendant was personally present at all times required by statute is therefore entertain-able. In Folden v. State, 13 Neb. 328, 14 N. W. 412, Justice Lake, in speahing for the court, uses the following language. ‘ ‘Where the record once shows the presence of the prisoner at hi's trial, it will be presumed to have continued to the end, unless the contrary is affirmatively shown.”
Finding "no error in the record, the judgment appealed from is" affirmed.