
    James Jones v. The State of Ohio.
    1. Where the jury on the trial of a felony have retired to consider of their' verdict, it is error for the court, on the return of the jury into court, to again instruct them as to the law of the case in the absence of the accused, who is then in jail under the order of the court.
    2. Such irregularity is not cured by the presence of defendant’s counsel at the giving of such additional instructions.
    
      S. Nor will a reviewing court inquire into the correctness of such additional instructions.
    Error to the Court of Common Pleas of Hocking county.
    The plaintiff in error, at the May term, 1875, of the court below, was indicted for the crime of murder in the second degree, and was afterward found guilty of manslaughter and sentenced to imprisonment in the penitentiary for the term of two years.
    On the trial, as the record shows, the case was submitted to the jury for their verdict at five o’clock in the evening, and the defendant was remanded to the jail of the county. At seven o’clock next morning the jury returned into court and requested farther instructions on points material to the issue. Thereupon, in the absence of the defendant, who was still confined in the jail, the court again instructed the jury on the points requested, “ in the tenor and effect as first charged.” Shortly afterward the jury again returned into court, and in presence of the defendant delivered the verdict of guilty as above stated. At the giving of the last instructions one of defendant’s counsel was present and made no objection. The record does not show the nature of the instructions given, further than they were material to the issue.
    After verdict a motion for a new trial was overruled; and it is here assigned for error that the court instructed the jury in the absence of the defendant, who was at the time imprisoned in the jail.
    
      Rippey ‡ Freisner, for plaintiff in error :
    1. The defendant below had a constitutional right to be present during the entire trial, not only by his counsel, but in person to defend ; and if prevented from being present it is error. Const., art. 1, sec. 10; Sargeant v. The State, 11 Ohio, 472; Rose v. The State, 20 Ohio, 81; 18 Ohio, 480; 11 Ohio St. 259; People v. Harrington, 42 Oal. 165.
    2. The right of the accused to be present could not be waived by counsel. 12 Ohio St. 622.
   By the Court.

"We are unanimously of opinion, that on the trial of a felony it is error to proceed, at any stage of the trial, during the enforced absence of the accused, save only in the matter of the secret deliberations of the jury, and perhaps in the hearing of motions after verdict and before judgment.

It was the right of the plaintiff in error to be present at each and every instruction given to the jury as to the law of the case. This right was denied to him by reason of his imprisonment under the order of the court; and without inquiry as to the correctness of the instruction so given in his absence, it will be presumed that he was prejudiced thereby.

Nor was the irregularity cured by the presence of his counsel at the time the additional instruction was given, and his failure to make objections. The right of the accused to be present on the trial of such case can not be waived by counsel.

Judgment reversed and new trial granted.  