
    Elmore Warfield v. State of Mississippi.
    [50 South. 561.]
    CRIMINAL Law and Procedure. Murder. Trial. Absence of defendant..
    
    The absence of the defendant, on trial for murder, during a part of' the time the jury was being impaneled, is fatal error.
    EboM the circuit court of Warren county.
    HoN. JohN N. Bush, Judge.
    Warfield, the appellant, was indicted and tried for the murder of his wife, was convicted, sentenced to the penitentiary for life, and appealed to the supreme court.
    ■The opinion of the court sufficiently states the facts. The-affidavit of Maganos, read on the hearing of appellant’s motion, for a new trial, referred to in the opinion, affirms that the affiant, having been summoned as a special venire-man, was present in court (although not impaneled on the jury) during the trial of" appellant, and that at one stage of the trial, when the court was-asking the jurors in the box whether or not they had been members of the grand jury which indicted the prisoner, the prisoner-was not in the court room or in the presence of the court.
    
      Tbe judgment of tbe court below was by tbe supreme court affirmed, no written opinion being delivered, but, on suggestion of error tbe case was again considered, and tbe affirmance set aside as shown in tbe opinion.
    
      R. L. 0. Barrett, for appellant.
    Appellant was convicted of murder. Being tried on a capital charge, be was entitled to be protected in all of bis legal' rights. Being an ignorant negro, tbe constitutional requirement that be be given a fair trial applies with possibly more force than if be were an intelligent, able, and inf! uential white man.
    As shown by the affidavit of a reputable person appellant was not in the court room when the jury was being impaneled. This constitutes reversible error. Sherrod v. State, 93 Miss. 774, 47 South. 554; Rolls v. State, 52 Miss. 391.
    
      George Butler, assistant attorney-general, for appellee.
    Appellant was convicted of tbe atrocious murder of bis wife, was ably represented in the court below, and may be thankful that be was sentenced to life imprisonment instead of to be banged. Whether bis absence from tbe court room, when the jury was being impaneled, constitutes reversible error is respectfully referred to this court for its determination.
   Whittteld, 0. J.,

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.

Wherefore the suggestion of error is sustained, the former judgment of affirmance vacated and set aside, and the judgment •of the court below is reversed, and the cause remanded for a new trial. Reversed.  