
    [No. 2,863.]
    THE PEOPLE OF THE STATE OF CALIFORNIA v. MARGARET A. MOORE.
    New Trial—Misconduct oe Jury.—The retirement of a jury for a necessary purpose for a few moments, with the permission of the Sheriff, out of his sight, there being no evidence that during such retirement they communicated with any one, or with each other, hut positive proof to the contrary, is not sufficient ground upon which to grant a new trial.
    Appeal from the County Court of San Mateo County.
    The defendant was tried for grand larceny and convicted. A motion for new trial, on the ground of misconduct of the jury, was granted. The appeal is taken from the order granting the new trial.
    
      Attorney General, Jo Hamilton, for Appellant.
    
      H. Kincaid, for Respondent.
   By the Court, Crockett, J.:

The motion of the defendant for a new trial was improperly granted. There is nothing in the record tending in the slightest degree to show any misconduct in the jury, or on the part of the officer having them in charge. There is not only no evidence that.the several jurors who retired for a few moments, with the permission of the Sheriff, out of his sight, to obey a call of nature, communicated with any one, or with each other, during their temporary absence, but there is positive' proof to the contrary.

Order reversed, and cause remanded for further proceedings, with an order to the Court below to enter judgment on the verdict.  