GARRARD, Presiding Judge.
Lois Ruth Childers was convicted by a jury of involuntary manslaughter. During the course of the jury's deliberation, the jury submitted a written interrogatory to the trial judge which read as follows,
The judge, the prosecuting attorney and defense counsel discussed the communication in the trial judge's chambers. The judge drafted a response and defense counsel was granted permission to file written objection thereto. As the jury was being brought into the courtroom, defense counsel raised the question of Childers' absence. The trial judge acknowledged her absence but proceeded to read his response to the jury which read as follows,
Childers contends that the trial court's communication with the jury which concerned her substantive rights and which took place outside her presence without a waiver of her right to be present was a violation of her constitutional rights and constitutes reversible error.
The trial court committed error in communicating with the jury in Childers' absence. It is well settled that a defendant has a constitutional right to be present at all stages of the criminal proceeding. Foster v. State (1977), 267 Ind. 79, 367 N.E.2d 1088; Harris v. State (1967), 249 Ind. 681, 231 N.E.2d 800; Decker v. State (1979), Ind. App., 386 N.E.2d 192; Constitution of Indiana, art. I, § 13. Furthermore, as pointed out in Harris, defense counsel cannot waive this right on behalf of an accused. 231 N.E.2d 804. However, communication with the jury in the defendant's absence is not per se reversible error. While the denial of a defendant's constitutional right to be present raises an inference of prejudice, such inference can be rebutted by the state and the error held to be harmless. Foster v. State, supra; Harris v. State, supra.
In Foster, the trial judge's response that he could not answer the jury's question and that the jury must base its verdict solely on the evidence presented at trial was found to be harmless error beyond a reasonable doubt. Likewise, in Harris, the trial court's questioning of the jury as to its ability to reach a verdict was held to be non-prejudicial to the defendant.
However, it has often been held that,
Deming v. State (1956), 235 Ind. 282, 286, 133 N.E.2d 51, 53.
Thus, in Decker, the jury asked if the gun used had to be a real gun as opposed to a toy gun in order for the defendant's action
Decker v. State (1979), Ind. App., 386 N.E.2d 192, 204.
In the instant case, the trial judge was called upon to explain the elements of the offense of involuntary manslaughter by further comment on the instructions given the jury. Such communication clearly pertained to the substantive rights of Childers and the matter was very relevant to the jury's deliberation. The question was not asked until the jury had deliberated for seven hours. An hour after the explanation, the jury returned a verdict of guilty of involuntary manslaughter. It is impossible for the court to conclude that the communication was harmless beyond a reasonable doubt.
HOFFMAN and STATON, JJ., concur.