#### STATE OF NORTH DAKOTA, Respondent, v. FRED SCHASKER, Appellant.

(235 N. W. 345.)

Opinion filed February 18, 1931.

*Charles M. Dunn,*and *Jacobsen & Murray,*for appellant.

*James Morris,*Attorney General and *Paul*W. *Boehm,*State’s Attorney, for respondent.

*463Burke, J.

This is an appeal from a judgment of conviction from an order denying defendant’s motion in arrest of judgment, and from an order denying defendant’s motion for a new trial.

At tbe January, 1930, term of tbe district court of Adams county, tbe defendant, Pred Schasker, was brought to trial on an information charging him with grand larceny. Tbe testimony was taken, the jury was instructed and retired for a consideration of tbe evidence, and immediately thereafter, tbe court adjourned until 9 o’clock tbe following morning. Tbe record shows that on tbe next morning, tbe following proceedings were bad, viz.:

> “At 9 :30 a. m., January 30th, 1930, court having been previously called to order, the bailiff informed tbe court that tbe jury would like to have some of tbe testimony read to them, tbe court thereupon ordered that tbe bailiff conduct tbe jury, into court.

> “Tbe jury was brought into court and on roll call all members of tbe jury were present.

> “By tbe court: Have you agreed upon a verdict, members of tbe jury?

> “Tbe jury: No, sir.

> “By tbe court: Is there anything tbe court can help you out on ?

> “Tbe jury: Tbe main difficulty seems to be as to tbe brands that Mr. Clement testified to while on tbe witness stand, that is tbe part we would like to have explained to us. There is some misunderstand*464ing as to what Mr. Clement testified to and we would like to have that part of the testimony read with reference to brands if it is possible.

> “By the court: Very well, we will have the court reporter read that part of the testimony to you.

> “The court reporter then read the following testimony, part of the direct examination of the witness, William Clement. The cross-examination was not read. When the last question and answer herein was read by the reporter the jury informed the court that was enough, that they had the desired information. The jury thereupon retired for further deliberation.”

The court stenographer read to the jury from his notes, the testimony in chief of the witness William Clement, which testimony when transcribed made ten pages in typewriting in the record. It is conceded, that this proceeding was had in the absence of the defendant and his attorney. The defendant was in jail at the time, and neither he nor his attorney had any knowledge, of the proceeding. This action on the part of the court is assigned as error, and it is error.

Section 13 of the Constitution provides: “In criminal prosecution in any court whatever, the party accused shall have the right . . . to appear and defend in person and with counsel.”

Section 10,709, Comp. Laws 1913, provides: “If the information or indictment is for a felony the defendant must be personally present.”

Section 10,771, Comp. Laws 1913, provides: “If the information or indictment is for a felony, the defendant must be personally present at the trial.”

The defendant had the constitutional right to be present and defend in person and with counsel during the whole of the trial.

The proceeding complained of was a part of the trial. The jury was in the box. The judge was upon the bench, and ordered the court stenographer to read the testimony of a witness, to which the jury listened and after retiring returned the verdict of “guilty.” It was a plain violation of the statute, and of the constitutional rights of the defendant.

Our attention has been called to the case of State v. Thomson, 56 N. D. 716, 219 N. W. 218. In that case the defendant waived his right to be present at the rendition of the verdict of the jury by his *465voluntary absence, but in tbe instant case tbe defendant was in jail and did not waive any rights.

Tbe judgment is reversed and a new trial ordered.

Christianson, Ob. J., and Nuessle, Burr, and Birdzell, JL, concur.