
    DIBBLES v. STATE.
    (No. 6268.)
    (Court of Criminal Appeals of Texas.
    June 1, 1921.)
    Criminal law <§=>854(3) — Conviction reversed where jurors separated.
    A judgment of conviction of a felony cannot stand where the court below with the consent of the accused permitted the jury to separate and go to their respective homes and spend the night, none of them being accompanied by an offleer, under Vernon’s Ann. Code Cr. Proe. 1916, art. 745.
    Appeal from District Court, Hardin County; D. F. Singleton, Judge.
    Collie Dibbles was convicted of burglary, and appeals.
    Reversed and remanded.
    Owen M. Lord, of Sour Lake, for appellant.'
    R. H. Hamilton, Asst. Atty. Gen., for the ■State.
   LATTIMORE, J.

This appellant .was convicted in the district court of Hardin county of the offense of burglary, and his punishment fixed at confinement in the penitentiary for three years.

It appears from bill of exceptions No. 1 that, after the testimony in the case had been introduced, the court below, with the consent of the appellant, permitted the jury to separate and go to their respective homes and there spend the night, none of them being accompanied by an officer. To tbis action of the court appellant took his bill of exceptions, which is approved by the trial court without any explanation whatever. This is in violation of the express inhibitions of article 745, Vernon’s O. O. P., which forbids the separation of the jury in a felony case in any event except the jurors so separated be in charge of an officer. This court held in Porter v. State, 1 Tex. App. 394, that such separation was not allowable even by the consent of the accused and permission of the judge presiding, unless said jurors were in charge of an officer. So far as we know, there has been no deviation from this holding down to the present. See Sterling v. State, 15 Tex. App. 249; Kelly v. State, 28 Tex. App. 120, 12 S. W. 505. No sort of explanation of the fact of such separation anywhere appears, nor was there even any effort on the part of the state to show no injury. Early v. State, 1 Tex. App. 248, 28 Am. Kep. 409; Burris v. State, 37 Tex. Cr. R. 587, 40 S. W. 284.

Eor the error mentioned the judgment of conviction will be reversed, and the cause remanded for another trial. 
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