Him, C. J.
The plaintiffs in error were jointly indicted for burglary, and were convicted. They filed a joint motion for a new trial, based upon the general grounds and upon numerous special assignments of error. This motion having been overruled, the case is here for review.
1. We do not deem it necessary to consider the general grounds for the purpose of showing that the verdict was supported by the evidence. While the conviction was based entirely upon circumstantial evidence, a careful examination of the evidence satisfies this court that the proof comes fully up to the standard required by law as to this character of evidence. The proved facts were not only consistent with the hypothesis of guilt, but excluded every other reasonable hypothesis save that of the guilt of the accused. Penal Code (1910), § 1010. We hazard nothing in saying that in our opinion it would be difficult to establish guilt by a clearer, stronger, or more consistent chain of facts and circumstances, or by circumstances which, taken together, would prove more conclusively the guilt of the accused. The verdict therefore' should be allowed to stand, unless some material and prejudicial error of law was committed on the trial. An examination of all the special assignments of errors of law leads us to the conclusion that all but one are so clearly without merit as to. render extended discussion of them wholly unnecessary. Indeed, this seems to have been the view entertained-by learned counsel for plaintiffs in error, who, while not abandoning any of the grounds of the motion for a new trial, seem to rely principally upon one only. This one we will briefly consider and determine.
[442] 2. The ground referred to is as follows: “The jury was charged and entered upon the consideration of the case about one o’clock on the afternoon of April 24th, and remained in the jury-room during the afternoon and until about 10 o’clock at night, considering the case. The verdict was returned at 9 o’clock a. m., April 25, 1913. During the afternoon the jury had stated, in response to inquiries from the court, that it was not likely to agree upon a verdict. About 10 o’clock at night the judge, in company with the sheriff, visited the court-house and inquired of the jury at the door of the jury-room if they desired to be put to bed or were likely to make a verdict; the purpose of the judge being to arrange for the care and comfort of the jurors during the night, unless they were likely to agree upon a verdict. At this point one of the jurors inquired of the judge as to what he had charged with reference to the right of the jury to recommend that the defendants be punished as for a misdemeanor. To this inquiry the judge responded by stating, in substance, that he had charged that in the event the jury should find the defendants guilty, they would have the right to recommend that the defendants be punished as for a misdemeanor, and that if such recommendation should be approved by the court, the defendants would receive a misdemeanor sentence. Within a few minutes ' after this occurrence the judge informed counsel for defendants as to what had occurred. The defendants and their counsel were not present, nor had they waived their right to be present.' Movants contend that, inasmuch as their counsel was not present and had not waived the right to be present when the judge answered the question of the juror, a new trial should be granted, for the reason that the answer of the judge, made in response to the question of the juroT, was, in effect, a recharge, and especially so to the juror who propounded the question.”
It is well settled that in the trial of a criminal case, whether a felony or a misdemeanor, the accused has the right to be present, in person and by his attorney, during every stage of his trial from the arraignment to the verdict. Lyons v. State, 7 Ga. App. 50 (66 S. E. 149), and citations. This right can not be lost except by a clear and distinct waiver thereof by the accused. Martin v. State, 51 Ga. 567, and citations. This right is guaranteed to the accused by the fundamental law of this State, in order that he and his counsel may see to it that he has a fair and impartial trial and [443] that nothing is done that would in any wise tend to his prejudice. Unquestionably the trial judge should not in any manner communicate with the jury about the case, in the absence of the accused and his counsel, pending the trial; and the better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There' should be no communication which would tend in any manner to prejudice the accused (for instance, to hasten a verdict against him, or to induce jurors who might be for him to yield their convictions); and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial, and the accused would be entitled to another trial. In line with this, it has been ruled in this State that in the absence of both the prisoner and his counsel, the court could not call in the jury and read to them notes of the evidence (Wade v. State, 12 Ga. 25); and that in the absence of the pris-' oner, who was confined in jail, the judge was not authorized to recharge the jury, although the prisoner’s counsel was present and made no objection to the recharge (Bonner v. State, 65 Ga. 510).
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Him, C. J.
The plaintiffs in error were jointly indicted for burglary, and were convicted. They filed a joint motion for a new trial, based upon the general grounds and upon numerous special assignments of error. This motion having been overruled, the case is here for review.
1. We do not deem it necessary to consider the general grounds for the purpose of showing that the verdict was supported by the evidence. While the conviction was based entirely upon circumstantial evidence, a careful examination of the evidence satisfies this court that the proof comes fully up to the standard required by law as to this character of evidence. The proved facts were not only consistent with the hypothesis of guilt, but excluded every other reasonable hypothesis save that of the guilt of the accused. Penal Code (1910), § 1010. We hazard nothing in saying that in our opinion it would be difficult to establish guilt by a clearer, stronger, or more consistent chain of facts and circumstances, or by circumstances which, taken together, would prove more conclusively the guilt of the accused. The verdict therefore' should be allowed to stand, unless some material and prejudicial error of law was committed on the trial. An examination of all the special assignments of errors of law leads us to the conclusion that all but one are so clearly without merit as to. render extended discussion of them wholly unnecessary. Indeed, this seems to have been the view entertained-by learned counsel for plaintiffs in error, who, while not abandoning any of the grounds of the motion for a new trial, seem to rely principally upon one only. This one we will briefly consider and determine.
[442] 2. The ground referred to is as follows: “The jury was charged and entered upon the consideration of the case about one o’clock on the afternoon of April 24th, and remained in the jury-room during the afternoon and until about 10 o’clock at night, considering the case. The verdict was returned at 9 o’clock a. m., April 25, 1913. During the afternoon the jury had stated, in response to inquiries from the court, that it was not likely to agree upon a verdict. About 10 o’clock at night the judge, in company with the sheriff, visited the court-house and inquired of the jury at the door of the jury-room if they desired to be put to bed or were likely to make a verdict; the purpose of the judge being to arrange for the care and comfort of the jurors during the night, unless they were likely to agree upon a verdict. At this point one of the jurors inquired of the judge as to what he had charged with reference to the right of the jury to recommend that the defendants be punished as for a misdemeanor. To this inquiry the judge responded by stating, in substance, that he had charged that in the event the jury should find the defendants guilty, they would have the right to recommend that the defendants be punished as for a misdemeanor, and that if such recommendation should be approved by the court, the defendants would receive a misdemeanor sentence. Within a few minutes ' after this occurrence the judge informed counsel for defendants as to what had occurred. The defendants and their counsel were not present, nor had they waived their right to be present.' Movants contend that, inasmuch as their counsel was not present and had not waived the right to be present when the judge answered the question of the juror, a new trial should be granted, for the reason that the answer of the judge, made in response to the question of the juroT, was, in effect, a recharge, and especially so to the juror who propounded the question.”
It is well settled that in the trial of a criminal case, whether a felony or a misdemeanor, the accused has the right to be present, in person and by his attorney, during every stage of his trial from the arraignment to the verdict. Lyons v. State, 7 Ga. App. 50 (66 S. E. 149), and citations. This right can not be lost except by a clear and distinct waiver thereof by the accused. Martin v. State, 51 Ga. 567, and citations. This right is guaranteed to the accused by the fundamental law of this State, in order that he and his counsel may see to it that he has a fair and impartial trial and [443] that nothing is done that would in any wise tend to his prejudice. Unquestionably the trial judge should not in any manner communicate with the jury about the case, in the absence of the accused and his counsel, pending the trial; and the better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There' should be no communication which would tend in any manner to prejudice the accused (for instance, to hasten a verdict against him, or to induce jurors who might be for him to yield their convictions); and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial, and the accused would be entitled to another trial. In line with this, it has been ruled in this State that in the absence of both the prisoner and his counsel, the court could not call in the jury and read to them notes of the evidence (Wade v. State, 12 Ga. 25); and that in the absence of the pris-' oner, who was confined in jail, the judge was not authorized to recharge the jury, although the prisoner’s counsel was present and made no objection to the recharge (Bonner v. State, 65 Ga. 510).
The case of Hopson v. State, 116 Ga. 90 (42 S. E. 412), is relied upon by counsel for the plaintiffs in error. In that case it was held that “recalling a jury in a criminal case who had retired to consider of their verdict, and, in the absence of the accused and his counsel and without their consent, giving a second charge, is cause for a new trial, even though this charge be the same in substance as that which had been delivered in the first instance.” In that case it was further said that it would make no difference whether both the accused and his counsel were ignorant of the recharge until after the trial ended, and that this irregularity might be taken advantage of after verdict, notwithstanding the knowledge thereof by the accused and his counsel while the trial was in progress. The first question, therefore, to be considered in the present case is whether the statement which the judge made in answer to the inquiry of the jury amounted to a recharge. In Roberson v. State, 135 Ga. 654 (70 S. E. 175), it was held not to be ground for a new trial that the judge, in the presence of the defendant but [444] during the voluntary absence of his counsel, repeated his instructions to the jury as to the different forms of verdict that might be rendered. In the present case it does not appear whether counsel was absent voluntarily or not; and while it is not distinctly stated, it is fair to assume that the accused were involuntarily absent, because in confinement; for it is not at all probable that they were out on bond. We cite the Roberson ease not as to this phase of the question, but for the purpose of showing that the statement made by the trial judge in the present case was not a recharge, and simply amounted to a restatement of the form of the verdict. The Hopson case, supra, is certainly a very strong authority in support of the contention of the plaintiffs in error, but we think it is differentiated from the present case by the fact that in that case the judge recalled the jury and repeated his entire charge to them, in the absence of the 'accused and his counsel. Certainly this could not be allowed. To permit such practice would tend to undermine and to destroy the value of a fair and impartial trial and to deprive the accused of his inalienable right to be present at every stage of the trial and to have his counsel present for the purpose of protecting his rights; and in the Roberson case, supra, the Supreme Court evidently took this view of the question; for the court distinguished that case from the Hopson case by the fact that in the Hopson case there was a repetition of the entire charge, while in the Roberson case the judge repeated his instructions only as to the different forms of verdict authorized to be rendered.
In considering the right of the accused to be present at every stage of the trial, and to have his counsel. present, we must not lose sight of the further principle, equally well established, that a new trial will not be granted on account of an error which manifestly caused no injury to the accused. It would be trifling with justice to set aside a verdict clearly and strongly supported by the evidence, solely on the ground that such an error had been committed by the trial judge. To warrant such action by a reviewing court, it must be manifest that the error was prejudicial in character. How could it have prejudiced the accused for the judge to have repeated to the jury, in answer to the juror’s inquiry, what he had already stated, — that they would have a right to- recommend that the case be treated as a misdemeanor, and that he, in his discretion, could adopt such recommendation ? The statement appar[445] ently was favorable to tbe accused. It emphasized the right of the jury to treat the case as a misdemeanor. It must be perfectly clear that it could not have induced any juror to yield any conviction as to' the essential fact of the guilt of the accused. If the members of the jury were divided or hesitating, it was not as to the guilt of the accused, but as to their right to make a recommendation that the case be treated as a misdemeanor; it did not hasten a verdict, for the verdict was not returned until eleven hours thereafter. Besides, the judge almost immediately made a statement of the occurrence to the counsel for the accused. If they thought the communication was prejudicial or was a recharge to the jury, it was their duty to have insisted then, or certainly the nest morning, on the withdrawal of the case from the jury and the declaration of a mistrial.
We are not unmindful of the fact that in the Hopson case it was said that it would be a matter of indifference whether the accused or his counsel knew of the alleged misconduct of the judge or not, that the irregularity could be taken advantage of after verdict. This question was not involved in the Hopson case, and this part of the opinion seems to have been obiter dictum of the judge who wrote the opinion. We are not willing to hold, in the absence of a direct decision to the contrary by the Supreme Court, that an irregularity in a criminal trial could not be waived by silence as well as by action. It has been frequently held by the Supreme Court that the unauthorized dispersal of the jury could be waived by silence, or by failure to make timely objection. It has also been held that knowledge of the disqualification of a juror is waived by failure to take timely advantage of the knowledge of the disqualification. Many rights involving a fair and impartial jury trial may be waived, either by the conduct of the accused or his counsel or by their silence. Scott v. State, 6 Ga. App. 567 (65 S. E. 359); Walker v. State, 2 Ga. App. 636 (58 S. E. 1106); Davis v. Ragin, 7 Ga. App. 308 (66 S. E. 806), and citations. The accused and his counsel should not be allowed to take their chances of a favor.able verdict, with knowledge of an irregularity, and, after losing, set up such irregularity as ground for another trial. But we do not place our judgment solely on this view. We rather place it upon the opinion that the .statement made by the judge in the present case to the juror did not amount to a recharge, but was [446] equivalent simply to an instruction as to the form of a verdict which the jury were authorized to render; and that even though an irregularity, it did not and could not result in injury to the accused. If we thought the accused had been deprived of any essential right by this statement made to the juror by the judge, we would not hesitate to grant another trial for that reason, but we can not imagine any right that the accused was deprived of by the statement made to the juror as to the power of the jury to recommend that the charge of felony be treated as a misdemeanor. The evidence is so strong and so clear as to guilt that we do not feel that we should, in the interest of justice,- declare another trial for a mere irregularity which, in our opinion, was immaterial, and which could not in any view have been productive of injury to the accused.
Judgment affirmed.