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 making of such an order was no part of the trial, within the meaning of § 7321, Comp. Laws, which provides that, where the offense is a felony, the defendant must be personally present at the trial. Epps v. State, (Ind.) 1 N. E. Rep. 491, 493; Boswell v. Com., 20 Grat. 860. The failure to give either the accused or his counsel notice of the application for this order, if notice was necessary, was without prejudicial effect upon the defendant. All objections which could have been interposed on the application for the order were raised and argued before both the trial court and this court, and both courts have heard him as fully on these points as if he had made the objections before the order was granted. If error, it was without prejudice, and for such an error there can be no reversal. Section 7588, Comp. Laws.

Certain requests to charge were made by counsel for the accused. Error is assigned because of the refusal of the court to give them. Without examining them in detail, it is sufficient to say that we have carefully considered the points, and are clear that no error was committed by the refusal to charge the jury as requested, nor was the exception to the charge well taken.

The judgment is affirmed. All concur.

(53 N. W. Rep. 430.)

State ex rel. R. R. Co. vs. Judge of District Court of Stutsman County.

Opinion filed Oct. 31st, 1892.

Mandamus to District Judge—Refusal to Decide Motion for New Trial.

Alternative writ of mandamus quashed, because it appeared that the motion for a new trial, which it directed the District Judge to decide, was not pending before him for decision.

Application by the state on relation of the Northern Pacific Railroad Company for a writ of mandamus to compel the judge of the District Court of Stutsman County, to take up and decide a motion