before the Hon. A. K. Vickers, judge, and the argument was concluded. It further recites as follows: "And thereupon the court gave and read to the jury for and on behalf of the People, plaintiff, the following instructions over the objections of the defendant, to-wit:" then follow twenty instructions given to the jury by the Hon. A. K. Vickers for and on behalf of the People, each of which is marked "given." Exceptions were taken by the defendant to the giving of each of said last named instructions. The bill of exceptions then proceeds to recite as follows: "And thereupon the court for and on behalf of the defendant read to the jury the instructions following, which said instructions had before that time been passed upon, approved and marked given by the Hon. Joseph P. Robarts while presiding upon the trial of said cause, and before the said Hon. A. K. Vickers came to preside upon said trial." Then follow instructions numbered from 1 to 18 inclusive, given and read to the jury for and on behalf of the plaintiff in error.

The bill of exceptions then recites that plaintiff in error, by his counsel, then and there asked the court to also give and read to the jury instructions, numbered 19 and 20, for and on behalf of the plaintiff in error, but that the court refused to give and read the said instructions to the jury, to which refusal plaintiff in error, by his counsel, then and there excepted. The court then gave to the jury instructions in regard to the form of their verdict.

The bill of exceptions, signed by Judge Vickers, closes as follows: "And upon the return by said jury of said verdict, the defendant then and there by his counsel excepted to said verdict, and moved the court to set aside said verdict and grant the defendant a new trial in said cause, whereupon the said presiding judge, A. K. Vickers, stated that Hon. Joseph P. Robarts, one of the judges who had presided at this trial, would consider the motion for a new trial on Monday, February 4, A. D. 1901,

whereupon the said circuit court was adjourned to the fourth day of February, A. D. 1901.”

The foregoing proceedings, consisting of the vacation of the bench by Judge Robarts, and the conduct of the trial thereafter by Judge Vickers, are assigned as error by the plaintiff in error.

Several significant facts are involved in this assignment of error. Before the trial of the case was concluded, and before the argument in favor of the prisoner was finished, the judge who had presided at the trial up to that time left the bench, and another judge who, so far as this record shows, knew nothing about the proceedings which had taken place up to that time, took his place upon the bench, and presided during the rest of the trial, and gave the instructions to the jury, and received the verdict.

It appears from the bill of exceptions, that the instructions, which were given for the defendant, had been passed upon and marked “given" by Judge Robarts before he left the bench. They were read to the jury by Judge Vickers. Judge Vickers, however, gave and read to the jury all the instructions which were given for the State, and himself passed upon the same, and approved of the same, and marked the same "given." We regard this assignment of error as being well taken. It requires a reversal of the cause, and therefore we pass no opinion upon the facts.

It is well settled that "the argument of a cause is as much a part of the trial as the hearing of evidence." (Meredeth v. People, 84 Ill. 479; Thompson v. People, 144 id. 378; State of Iowa v. Carnagy, 106 Iowa, 487; Ellerbe v. State, 75 Miss. 527; State v. Beuerman, 59 Kan. 591). It is also a general rule, established by the weight of authority, that, in prosecutions for felonies, the continual presence of the judge during the entire course of the trial is essential; and it is expressly held in many decisions that, in the trial of capital cases, the judge should not retire from the bench, even for a brief absence, without order

ing a suspension of business until his return.

(21 Ency.

of Pl. & Pr. pp. 978, 979, and cases referred to in notes).

It is claimed here, however, on the part of the State, that, during the trial of this case, the bench was at no time vacant, because, as soon as one circuit judge left the bench, another circuit judge, having equal power and belonging to the same circuit, took his place. The court, it is said, was the same during the whole of the trial, although two different persons presided during the trial at different times. In justification of the proceeding here under consideration section 62 of chapter 37 of our statutes, entitled "Courts," is referred to. That section provides that "judges of the several circuit courts of this State may interchange with each other and * * * may hold court or any branch of the court for each other, and perform each other's duties, where they find it necessary or convenient." (1 Starr & Curt. Ann. Stat.-2d ed.p. 1160). The vacation and substitution, which took place in this case, find no justification in the section thus referred to.

A prisoner on trial for his life is entitled to the judgment of the judge, who has heard the evidence in the case, and conducted the trial thereof. The instructions given by a judge must be based upon the facts, and necessarily involve an application of the law to the particular facts of the case. Here, the instructions given for the State were given by a judge who heard none of the evidence. Two instructions asked by the defendant were refused by a judge who heard none of the evidence. It is true, that the absence of one judge from the bench before the close of the trial was followed by the presence of another judge of equal power and jurisdiction. It is also true, that circuit judges may hold court for each other and perform each other's duties where they find it necessary or convenient. But this does not involve the right or power of one judge to finish for another the performance of a duty already entered upon by the latter,

when that duty involves the exercise of judgment and the application of legal knowledge and judicial deliberation to facts known to the latter and not known to the former.

It is a well settled principle of law that a judge can not delegate his judicial authority to another. (Ellerbe v. State, supra). In Davis v. Wilson, 65 Ill. 525, we said: "Judicial functions cannot be delegated to or exercised by an agent or deputy." Where a cause has been submitted to a judge upon the law and facts, as argued by counsel, for his consideration and determination, he can not delegate to another judge the consideration and determination of that case, even though the latter possesses the same or equal judicial power. In the case at bar, the instructions, given for the plaintiff in error, were passed upon and approved by Judge Robarts before he left the bench and marked "given" by him. The reading of these instructions to the jury was delegated by him to another judge, who had not heard the evidence, nor even all of the arguments made in the case. The task of passing upon the instructions offered in behalf of the State was not only abandoned by Judge Robarts, but was delegated by him to Judge Vickers, who had not heard the evidence to which the instructions in question were to be applied.

It appears in this case that, during the closing argument of the State's attorney to the jury and while Judge Vickers was upon the bench, a dispute arose between counsel as to the testimony of one of the witnesses, and the judge on the bench replied that he could not say what the evidence was. To this the plaintiff in error excepted. This shows the danger of allowing a judge to preside during the closing argument of a cause when he has no knowledge of what the testimony in the case was.

In none of the authorities to which we have been referred are the facts precisely similar to the facts in this case.

In Meredeth v. People, 84 Ill. 479, which was an indictment for murder, the judge of the circuit court was absent from the court room during the trial of the cause by consent of counsel for the defense, and was engaged elsewhere in the performance of other official duties, and, during his absence, his place upon the bench was occupied successively by two members of the bar; and it was there held to be error for the judge, before whom a case was on trial, to leave the court room whilst the cause was being argued before the jury, and that the judge should not, even by consent of the parties, be elsewhere employed. In the Meredeth case we said (p. 482): "The absence of the judge from the court room, engaged in other judicial labors, for a part of two days, in a trial of this magnitude, cannot be justified on any principle or for any cause. It is not allowable in a trial involving only mere property interests, much less in a case where the life of a human being depends upon the issue." In Thompson v. People, 144 Ill. 378, we said (p. 381): "On the trial of a criminal case before a jury the defendant has a right to be heard before the jury in person or by counsel as he may elect, and the People have a right to be heard through the State's attorney or such other person as may be selected for that purpose. This is a right guaranteed by law. Indeed, the argument before the jury is a part of the trial of a cause, as well as the introduction of evidence to prove the innocence or guilt of a defendant or any other fact at issue on the trial. If the presiding judge may leave the court room and engage in other business during the argument before the jury, he may upon the same ground leave while the evidence is being introduced during the progress of the trial at any other stage of the proceeding. Under our system of prac tice in the circuit court, during the progress of any judicial proceeding, the law requires a presiding judge to sit during each and every stage of such proceeding. * No part of the closing argument for the State was heard,

*