and although several objections were made to different portions of the argument, they were not, on account of the absence of the judge from the court room, passed upon or decided. Under the law the defendant, who was on trial for a serious crime, one which deprived him of his liberty, had the right to the presence of the presiding judge during the argument of the case before the jury, and the absence of the judge was, in our opinion, an error of sufficient magnitude to reverse the judgment." In our view, it makes no difference that another circuit judge of equal power and jurisdiction was presiding in place of the absent judge, if he had no such knowledge of the testimony, already given upon the witness stand, and of the proceedings, already taken in the cause, as to be able to direct and control the arguments of counsel when they pass beyond proper limits, and to determine whether or not the instructions to be given to the jury are based upon the evidence already heard in the presence of the jury.

In Hall v. Hamilton, 74 Ill. 437, we said (p. 440): "One judge may settle a portion of the pleadings, or decide motions in a case, and another judge may settle other portions of the pleadings and decide other motions, and another judge may try the case, or all may be done by one judge, so the record shows what was done by each judge in the case." The statement here made, that "another judge may try the case," is inconsistent with the contention that two judges may try the case. (See also Courson v. Browning, 78 Ill. 208).

Certain cases are referred to by counsel for the People, which are alleged to hold views inconsistent with those thus far expressed; but when they are carefully examined, such inconsistency will be found not to exist. In Chicago, Pekin and Southwestern Railroad Co. v. Town of Marseilles, 107 Ill. 313, it appeared that the trial was conducted before one judge, and no motion for a new trial was made when the verdict was rendered, but, during the trial term, the unsuccessful party entered a motion

for a new trial before a judge other than the one who presided at the trial of the cause, and it was held that the latter judge had rightful authority to deny the motion, and that it was not error to do so. In the Marseilles case, however, while it appeared that one judge presided at the trial and another passed on the motion for a new trial, it did not appear that two judges presided on the trial itself, and that the evidence and a part of the arguments were heard by one judge, and the rest of the arguments were listened to by another judge, and that the instructions were prepared by two different judges and read to the jury by a judge, who never heard the evidence in the cause. In People v. McConnell, 155 Ill. 192, the question was as to the power of one judge to decide a motion for a new trial, where the judge, who tried the cause, had died after verdict, and pending a motion for new trial. That is an entirely different question from the one here involved.

Counsel for the State refer to a statement in Bishop on New Criminal Procedure, (vol. 1, sec. 314, par. 7,) where it is said: "The court and judge are distinguishable; so that one judge may try a prisoner and another sentence him, and this principle applies to various like questions of judicial changes and substitutes." The statement of the text writer is based upon two cases, to-wit, Pegalow v. State, 20 Wis. 61, and Charles v. State, 4 Porter, 107. In Pegalow v. State, supra, the circuit judge, before whom the plaintiff in error was tried and convicted, had gone out of office, and had been succeeded by another judge who pronounced judgment upon the verdict; and the question arising upon the record was, whether the circuit judge had power to pass sentence upon a prisoner convicted before his predecessor in office; and it was there held that he had such power; but, there, the plaintiff in error was convicted of murder in the first degree, and the statute fixed the penalty for the crime, so that nothing was left to the discretion of the court. In Pegalow's case it

is said: "Where a discretion was given, there might be some reason for saying that the judge who pronounced the sentence should be acquainted with the circumstances of the case as disclosed at the trial, in order to award the proper degree of punishment. But no such reason can apply here." In the case at bar, the judge, who succeeded the trial judge, exercised a discretion and judgment as to the instructions to be given, and, hence, under the doctrine of the Pegalow case, it was necessary for him to "be acquainted with the circumstances of the case as disclosed at the trial."

In Charles v. State, supra, where a verdict of guilty was rendered in a criminal case, and the court adjourned without giving judgment thereon, it was held that a different judge, presiding at a different term, had power to render the judgment which the first court should have given, but, there, it appeared that, before the next term of the court, the judge, who presided on the trial of the indictment, had died. In the case at bar, there was no death, nor sickness, which justified the judge, who conducted the trial, in vacating the bench. It does not appear for what reason he abandoned the trial of the cause and turned it over to another judge. But, even if he went into another county in order to attend to other business upon his circuit, as is alleged by the Attorney General, there was no official business, which more properly demanded his attention than the trial in hand, which involved the life of a human being.

The case of Watkins v. Paine, 57 Ga. 50, has no application here, because that was a case where a motion for a new trial was made before the successor of the judge who had heard the case, and the court held that such successor might legally pass upon the motion.

In Bullock v. Neal, 42 Ark. 279, the judge at a trial became sick, and unable to preside, after the evidence was all in and the instructions had been given to the jury, and it was there held that the trial should proceed under

a special judge before the same jury, and without rehearing the testimony. (See also 17 Am. & Eng. Ency. of Law,-2d ed.-p. 721). That case, however, differs from the case at bar, because there the instructions had been given to the jury by the trial judge before the special judge took his seat on the bench, while, here, most of the instructions were passed upon and all were given by the substituted judge.

The course of decision in the State of New York is in favor of the position that a judge, who has not heard the evidence in the case, is not qualified to take part in the proceedings of the court. In Shaw v. People, 3 Hun, 279, it appeared that, under the law, the court was composed of a justice of the Supreme Court, who presided, and of the county judge and two justices of the peace; that several days were devoted to the taking of evidence, when an adjournment over Sunday was had, and, during the adjournment, one of the justices absented himself and continued absent during the whole of Monday; and, on Tuesday morning, without having heard the evidence given on Monday, and without having read it, and without the evidence being again given, resumed his seat upon the bench and took part in the deliberations of the court during the rest of the trial; and it was there held that he was not qualified to take part in the proceedings of the court. In Shaw v. People, supra, it was said in reference to the justice thus absenting himself: "His vote and voice upon any question arising upon the trial after his return may have produced a different result from what they would, had he remained during the whole trial, heard the whole evidence and given his reflective judgment to it, preparatory to voting and speaking in the deliberations which ensued after his return to the bench which he had, as to the parts of the trial which took place on Monday, vacated and abandoned. It is not for us to speculate, in a case where the life of a prisoner is involved, as to the extent of the influence of the vote and

voice of one who has not heard the whole evidence. The prisoner is entitled to the full benefit of the understanding and judgment of those who take part in the judicial deliberations which affect his life; he is entitled to all the forms of law, to all the provisions of the constitution by which his rights are secured. Where life is involved, the law humanely provides that the prisoner stands upon all his rights, and does not and cannot waive them. * It may be said to be erroneous for a member of the court to take part in the deliberation, consultation and rulings, when he has not heard the whole evidence given upon the trial. * It certainly is against public policy to allow a party to be deprived of his life by a tribunal, of which it can be said, that a portion thereof has not heard the whole evidence and proceedings which result in the sentence of death."

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So, in the case at bar, this plaintiff in error was entitled to the full benefit of the understanding and judg ment of the judge, who heard the evidence and conducted the trial up to the time of the making of the closing arguments. Here, the trial was conducted by two judges, one succeeding the other, and, here also, as was the case in Shaw v. People, supra, it is against public policy to allow this plaintiff in error to be deprived of his life by a tribunal, of which one of the sitting judges did not hear the whole evidence and proceedings resulting in the sentence of death against him. The decision in Shaw v. People, supra, as rendered by the Supreme Court of New York, was affirmed by the Court of Appeals of the State of New York in People v. Shaw, 63 N. Y. 39, where it is said: "After the trial had progressed several days, Justice Steere absented himself from the court for an entire day, during which the trial proceeded and evidence was taken. He did return and took part in the subsequent proceedings. This the general term decided, for the very cogent reasons, and upon the authorities * stated by Judge Hardin, was error."

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