delivered the opinion of the court.
It is shown by tbe affidavit of Maganos that tbe defendant was out of tbe court room during a part of tbe time tbe petit-jury was being inipaneled. Tbe district attorney did not see proper to introduce any counter affidavit, nor was there cross-examination of the witness Maganos. It, therefore, on this record, remains true that the defendant was not in tbe courtroom during a part of the very important proceeding of impaneling tbe jury. Under the authority of Sherrod v. State, 93 Miss. 774, 47 South. 554, 20 L. R. A. (N. S.) 509, and various other authorities cited therein, this was fatal error.