
    SEPHES v. STATE.
    (Court of Criminal Appeals of Texas.
    June 5, 1912.
    Rehearing Denied June 28, 1912.)
    Criminal Law (§ 1174) — Jury — Separation.
    Accused pleaded guilty of manslaughter, but asked that sentence be suspended. The jury assessed his punishment at two years’ imprisonment, and recommended that sentence be not suspended. Before the verdict was rendered court was suspended, owing to a fire nearby, and the sheriff! took the jurors into an adjoining room, but after five or ten minutes discovered that two of them were still in the courtroom. There were others in the courtroom at the time, but it did not appear that the jurors spoke to any one, or that any one spoke to them, and the door between the courtroom and the room where the sheriff was was open. Held, it being manifest that no undue influence was exercised on the jury as to the punishment, they having given accused the lowest penalty affixed to the crime of which he pleaded guilty, the separation of the jury could not have prejudiced him, although they declined to recommend a suspension of sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3170-3178; Dec. Dig. § 1174.]
    Appeal from District Court, Montgomery County; L. B. Hightower, Judge.
    A. W. Sephes was convicted of manslaughter, and he appeals.
    Affirmed.
    Llewellyn & Foster, of Conroe, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig.- Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted for murder, and when tried he entered a plea of guilty to manslaughter. The state insisting on no higher degree of offense, the jury returned a verdict finding him guilty of manslaughter, and- his punishment was assessed at two years’ confinement in the penitentiary, thus giving him the lowest penalty authorized by law.

The appellant requested the court to submit to the jury the question of whether or not he had ever before been convicted of a felony, and with the request that the sentence be suspended on whatever judgment the jury might render. In returning the verdict the jury recommended that the sentence be not suspended. While the evidence was being heard an alarm of fire was given, and the sheriff testified that court was suspended, and the jury requested that they be carried to where they could see the fire; that he told them they must not separate, and he would take them into the district clerk’s room, where they could see it; that after being in there fire or ten minutes his attention was called to the fact that two of the jurymen were not in the district clerk’s office; that he stepped to the door, and these two were at one of the east windows looking at the fire; that there were others in the courtroom where these two jurymen were; that the door was open between the district clerk’s office, where the main body of the jurymen were, and the courtroom, where the two jurymen were looking at the fire.

Because the jury refused to recommend a suspension of the sentence, appellant filed a motion for a new trial, on the ground that the jury was permitted to separate after being impaneled, and the evidence above recited was adduced when the motion was heard. It is manifest that no undue influence was used on the jury in the matter of punishment assessed, as they gave him the lowest penalty affixed to the crime to which he had entered a plea of guilty. Recently, in the case of Snodgrass v. State, 149 S. W. -, this court held the suspended sentence law unconstitutional, but as a motion for rehearing is pending, and not finally disposed of,, we will treat this question as though the law was valid.

We are cited by appellant to the cases of Early v. State, 1 Tex. App. 273, 28 Am. Rep. 409, and Robinson v. State, 30 Tex. App. 459, 17 S. W. 1082, and other cases, in which it was held that, where the jury separated and mingled with the crowd indiscriminately for an hour, the separation presented ground for reversal. In this case, however, no such facts are shown. The most that can be said is that, when the sheriff took ten of the jurymen into the district clerk’s office, two remained in the courtroom, and those two then went to an east window to look at the fire; that there were others in the courtroom, but it is not shown that any one spoke to them or they spoke to any one. It is not shown that they came in contact with any person, and this separation, if separation it should be termed, was only for five to ten minutes, with the sheriff in the district clerk’s office,* the door being open. In this case the lowest penalty being assessed under a plea of guilty, even though they declined to recommend a suspension of sentence, we cannot presume that this occasioned injury or prejudiced any right of the defendant. Champ v. State, 32 Tex. Cr. R. 87, 22 S. W. 678; Wakefield v. State, 41 Tex. 556, and cases cited in section 865 of White’s Ann. Procedure.

The judgment is affirmed. 
      
       Rehearing pending.
     