People v. Tupper

GAROUTTE, J. Defendant was convicted of a felony, and as ground for a new trial he alleged by affidavit, which was not contradicted, that during the argument of the case to the jury the Judge absented himself from the courtroom for the period of twenty minutes. It was also alleged by the affidavit that during such absence the judge was out of sight and hearing of the proceedings going on within the courtroom. The foregoing facts being undisputed, we are fully satisfied they demand a retrial of the defendant. The argument of the case to the jury is as much a part of the trial as the introduction of evidence. And evidence may be introduced before the jury, in the absence of the judge, if the practice here pursued may be held justified within the law. It is hardly necessary to present either argument or authority to show that neither of these practices can be justified. The judge is a component part of the court. There can be no court without the judge. And all that was done in the absence of the judge was in fact done in the absence of the court. A defendant convicted under such circumstances has been deprived of his liberty without due process of law. As fully supporting these views we cite O’Brien v. People, 17 Colo. 561; Turbeville v. State, 56 Miss. 793; State v. Beuerman (Kan. 1898), 53 Pac. Rep. 874.

The judgment and order are reversed and cause remanded for a new trial.

Van Fleet, J., and Harrison, J., concurred.