
    ERROR. IN REFUSING TO HEAR MOTION FOR A NEW TRIAL.
    Circuit Court of Hamilton County.
    Ernest Armstrong v. State of Ohio.
    Decided, December 14, 1912.
    
      Criminal haw — Motion for a New Trial Can Not be Ignored by Trial judge — Accused Can Not Demand that lie be Present at the Hearing as a Constitutional Right.
    
    The hearing of a motion for a new trial is not a part of the trial. The presence at the hearing of such motion of one convicted of a crime is not necessary and it is error for the trial judge to refuse to hear and determine same on account of the convict’s absence.
    
      Bulison <& Bose, for plaintiff in error.
    
      Thos. L. Pogue, contra.
    The plaintiff in error was convicted under an indictment charging cutting to wound and was in the penitentiary.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   We are of the opinion that the court erred in refusing to hear and determine the motion for a new trial on its merits, and, until such hearing by the trial court, this court is without jurisdiction to pass upon alleged errors occurring at the trial.

The plaintiff in error has a statutory right to have his motion determined in the court below. _ But we hold that he has no constitutional right to be present at the hearing as same is no part of the trial.

The court below is, therefore, directed to hear and pass upon the motion for a new trial upon the grounds therein stated.  