Ala. 273, 107 So. 737; Glass v. State, supra; Richardson v. State, 191 Ala. 21, 28, 68 So. 57; Watts v. State, 177 Ala. 24, 59 So. 270; Bluett v. State, 151 Ala. 41, 44 So. 84; Bell v. State, 20 Ala. App. 425, 104 So. 443; Huff v. State, 23 Ala. App. 426, 126 So. 417. Argument of counsel should be confined to a fair discussion of the relevant facts and inferences to be drawn from the evidence in the case, and, where it exceeds same, it should be excluded. Piano v. State, 161 Ala. 88, 49 So. 803; Gibson v. State, 193 Ala. 12, 13, 69 So. 533; Williams v. State, 25 Ala. App. 342, 146 So. 422; Bozeman v. State, 25 Ala. App. 281, 145 So. 165; Watts v. Espy, 211 Ala. 502, 101 So. 106; Tannehill v. State, 159 Ala. 51, 48 So. 662; James v. State, 170 Ala. 72, 54 So. 494. Absence of the judge during any part of the trial, where he is not in a position to discharge his duties effectively, vitiates the proceedings, unless he orders a suspension of the proceedings until he returns. 16 C. J. 812; State v. Darrow, 56 N.D. 334, 217 N.W. 519; Graves v. People, 32 Colo. 127, 75 P. 412, 2 Ann. Cas. 6; 21 Ency. Pl. Pr. 978; Slaughter v. U.S., 5 Ind. Terr. 234, 235, 82 S.W. 732; Miller v. State, 73 Ohio St. 195, 76 N.E. 823; Moore v. State, 46 Ohio App. 433, 188 N.E. 881; Powers v. State, 75 Neb. 226, 106 N.W. 332, 121 Am. St. Rep. 801. The absence of the judge prevented defendant from making an objection, and constituted ground for a new trial. Thompson v. People, 144 Ill. 378, 32 N.E. 968; People v. Chrfrikas, 295 Ill. 222, 129 N.E. 73; 16 C. J. 1132; Moore v. State, 29 Ga. App. 274, 115 S.E. 25; Thomas v. State, 150 Ala. 31, 43 So. 371; 17 A. E. Ency. Law (2d Ed.) 720 (2).
307 [51 A. 606]; State v. Brown, 3 Boyce (Del.) 499 [85 A. 797]; Howard v. People, 185 Ill. 552 [57 N.E. 441]; Diehl v. State, 157 Ind. 549 [62 N.E. 51]; State v. Aiken, 109 Iowa 643 [80 N.W. 1073]; State v. Shoemaker, 157 Iowa 176 [138 N.W. 381]; State v. Moon, 167 Iowa 26 [148 N.W. 1001]; State v. Sonner, 253 Mo. 440 [161 S.W. 723]; State v. Goodson, 299 Mo. 321 [ 252 S.W. 389]; State v. Schuerman, 70 Mo. App. 518; State v. Darrow, 56 N.D. 334 [ 217 N.W. 519]; Moody v. State, 17 Ohio St. 110; State v. Glass, 5 Ore. 73; State v. Clements, 15 Ore. 237 [14 P. 410]; State v. Montifiore, 95 Vt. 508 [116 A. 77]; note: 153 A.L.R. 1266; Contra: Williams v. United States, 138 F.2d 81 [78 App.D.C. 147, 153 A.L.R. 1213]; State v. Lee, 69 Conn. 186 [37 A. 75]; State v. Nossaman, 120 Kan. 177 [243 P. 326]; State v. Bly, 99 Minn. 74 [108 N.W. 833]; Bradford v. People, 20 Hun. (N.Y.) 309.) [1] Nonnecessity to preserve life may be shown by circumstantial evidence.
In re Terrill, 52 Kan. 29, 31, 34 P. 457, 458 (1893) (emphasis supplied; citation omitted). There can be no court without a judge, see Stokes v. State, 71 Ark. 112, 114, 71 S.W. 248, 249 (1902); People v. Blackman, 127 Cal. 248, 249, 59 P. 573, 573 (1899); State v. Sullivan, 95 Fla. 191, 208, 116 So. 255, 262 (1928); State v. Carnagy, 106 Iowa 483, 487, 76 N.W. 805, 806 (1898); Slaughter v. United States, 5 Ind.T. 234, 237, 82 S.W. 732, 733 (1904); State v. Darrow, 56 N.D. 334, 340, 217 N.W. 519, 522 (1928); In re Patzwald, 5 Okla. 789, 799, 50 P. 139, 143 (1897); State v. Olberman, 33 Or. 556, 557, 55 P. 866, 866 (1899); and if the presiding judge abandons the trial or relinquishes control of the proceedings, the criminally accused, who is entitled to be tried in a court duly constituted, has good cause to complain. State v. Beuerman, 59 Kan. 586, 591, 53 P. 874, 875 (1898).
So, failure to object to the judge's leaving the courtroom during argument to the jury has been said not to be a waiver of the accused's rights to raise and take advantage of the mistrial caused thereby. State v. Darrow, 56 N.D. 334, 217 N.W. 519. The reason that the doctrine should not be applied in case of absence of the judge is plain: "The presiding judge of a trial court is charged with the duty of trying the case from the opening to the close, and he ought not to abdicate his functions even for half an hour.
" A mistrial is granted generally on some fundamental failure in the proceeding, as for instance, the absence of the judge from the courtroom, State v. Darrow, 56 N.D. 334, 217 N.W. 519; when the verdict returned by the jury is incomplete so that no final judgment can be rendered thereon, Sonnesyn v. Akin et al, 14 N.D. 248, 104 N.W. 1026; Ward v. Gradin, 15 N.D. 649, 109 N.W. 57; want of Jurisdiction, Illinois Oil Co. v. Grandstaff, 118 Okla. 101, 246 Pa. 832. A mistrial may also be granted "when necessary to prevent the defeat of justice or in furtherance of justice." 53 Am Jur Sec 967, Trial, p 679.
It is a stringent step to be taken by the court upon the development of some fact or occurrence that renders further proceedings nugatory; as, for instance, when the judge is absent from the court room and out of hearing of the proceedings in a criminal case for a considerable time during the trial. See State v. Darrow, 56 N.D. 334, 217 N.W. 519. The trial court properly denied the defendant's motion for a mistrial.
" In the absence of the judge presiding at the trial there can be no court as that term is known to our law. State v. Darrow, 56 N.D. 334, 217 N.W. 519; Smith v. State, 230 Ala. 18, 158 So. 808. In this set of facts we conclude that the trial judge abused his discretion in (1) instructing the bailiff that he, the bailiff, (rather than the court) could let the jury go; and (2) entering up a mistrial on the foundation of this irregularity.
" In Ellerbe v. State ( 75 Miss. 522), after full consideration of authorities, the court formulated the rule "that in the trial of a felony the judge must always be where he can immediately respond to any call for the exercise of his authority in controlling the court and the conduct of the trial, his relinquishment, though even temporary, of such control of the court and conduct of the trial working, as to that case, a dissolution of the court." Similarly, in State v. Darrow ([Sup. Ct. N.D.] 217 N.W. 519), after carefully reviewing many decisions on this point, it was held that if the judge is out of hearing of the proceedings during the argument of counsel to the jury "the result is a mistrial, which is not waived by a failure to object to such absence." In Graves v. People (32 Col. 127) it was said that the judge "must not only be within hearing but within sight, of counsel and jury," and that "where the absence is such that the judge is not within sight of counsel and jury and the court room, and is not in a position to exercise full and complete control of the proceedings, though he may be within hearing of what is said during the argument, such absence itself is error of which the defendant may complain.