The opinion
'Given J.
(dissenting). — While I concur in the result reached in this case, and in the conclusion that a trial judge should not even temporarily relinquish control of the proceedings, I do not agree that it is in itself error, or that prejudice should be inferred from the fact of the judge’s withdrawing beyond hearing during arguments to the jury. Under our practice, the judge is required to instruct the jury in writing, — a duty that is always important, often difficult, and requiring careful reflection and an examination of authorities. If the judge may not retire to his room, within easy call, to prepare his instructions during arguments to the jury, he must adjourn the trial, dismiss or lock up the jury, or prepare them when his attention is divided between the trial and the preparation of the instructions. I am convinced that, if judges were afforded better opportunity for preparing their instructions, they would be less voluminous, more easily understood, more applicable to the case, and freer from errors. If the practice of preparing instructions in important cases during the trial, or during the hours of rest at noon and night, were abandoned, we would have better instructions. I think it should be left to the discretion of the trial judge whether he may withdraw from the court room to a place within easy call, to prepare his instructions during the argument on the issues of facts to the jury. It is only in exceptional instances that prejudice will result from his so doing, and in such eases give the prejudiced party the benefit of the Tact ivhen shown, *492 but do not presume prejudice when its occurrence is tbe exception and not the rule. Tbe presence of tbe bailiff is usually sufficient to preserve order, and,-when counsel appreciate and •observe tbe privileges of argument, there is no necessity for tbe constant presence of tbe judge. If counsel abuse-tbeir privilege, let discipline be administered to them, not to tbe judge. Disturbances or disputes during arguments to tbe jury, such as require tbe presence of tbe judge, are very •exceptional; and, if be is within easy call, be may readily restore order or ascertain and decide tbe dispute. The error in this case is that the judge did not ascertain and decide tbe matter in dispute. My observation leads me to believe that tbe cause of justice and tbe interest of litigants require that encouragement be given to tbe exercise of the utmost care in tbe preparation of instructions, and that thereby errors therein will be greatly lessened. It is a marvel to me that instructions prepared amid tbe surroundings of a trial are •as free from prejudicial errors as they are, but I believe they may be made more so by better opportunity for tbeir preparation.