
    (92 South. 702)
    No. 25337.
    STATE v. STUCKY et al.
    (June 23, 1922.
    Rehearing Denied by Division C July 17, 1922.)
    
      (Sylladas by Bditorial Staff.)
    
    1. Criminal law &wkey;>1137(8) — Defendant could not compiain ef retirement of unaccepted talesmen with other jurors where he objected to their separation.
    Defendant could not successfully complain that 2 tales jurors who had not been accepted retired from the courtroom with the 10 accepted jurors during the argument of a complaint, where this was done because he objected to their separation from the 10 jurors.
    2. Criminal law <&wkey;>l 1661/2(6) — Retirement of unaccepted talesmen with other jurors not harmful.
    That during the argument of a complaint 2 unaccepted tales jurors retired with the 10 accepted jurors was not harmful, where they remained in a hall of the courthouse only a short time in charge of the sheriff and under orders not to talk about the case.
    Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.
    Eloyd Stucky and P. W. Sibley were in-dieted for murder, and Sibley was convicted of manslaughter, and appeals.
    Affirmed.
    Drew & Drew, of Minden, for appellant.
    A. Y. Coco, Atty. Gen., Dist. Atty., of Arcadia (T. S. Wialmsley, of New Orleans, of counsel), for the State.
    By Division B, composed of Justices O’NIELL, LAND, and BAKER.
   BAKER, J.

Appellant, P. W. Sibley, was indicted for murder and convicted of manslaughter. He contends that the trial was irregular and illegal because 2 tales jurors, before being accepted for the trial of the case, were allowed to associate with 10 jurors who had been accepted and sworn.

It appears that when 10 jurors had been accepted and sworn the regular venire was exhausted. The judge then ordered 25 names drawn from the tales jury box, and ordered a recess of the court while the sheriff summoned the tales jurors. When court convened again, 2 tales jurors were drawn and were examined on their voir dire by the district attorney. Defendant’s attorney then declined to question the tales jurors, averring that his client had not been served with a list of the names drawn. During the argument of the complaint, defendant’s attorney requested that the jury retire from the courtroom. The judge ordered the sheriff to take the jurors out, instructing them not to talk about the case; and the 10 jurors who had been accepted and sworn retired with the sheriff, leaving the 2 tales jurors in court. Thereupon defendant’s attorney objected to the separation of the 10 accepted jurors from the 2 tales jurors, and insisted that the latter should also retire from the courtroom. At the conclusion of the arguments, and after defendant had been served with a list of the tales jurors, the sheriff returned into court with the 12 jurors, and defendant’s attorney then complained of the fact that the 2 tales jurors had gone out with the 10 accepted jurors, and demanded that the jury should be discharged. The judge refused to discharge the jury, but announced that he would sustain'a challenge of either or both of the tales jurors for cause. Defendant’s attorney accepted one of the tales jurors and challenged the other for cause, and his challenge was sustained.

Assuming that the judge should not have allowed the 2 tales jurors to retire from the courtroom with the 10 accepted jurors, the defendant cannot successfully complain of what was done at his request It is not possible that the retirement of the 2 tales jurors with the 10 accepted jurors was harmful or prejudicial to defendant. The 12 men remained in a hall of the courthouse only a short time, in charge of the sheriff, and under orders not to talk about the case.

The verdict and sentence appealed from are affirmed.

Rehearing refused by Division O, composed of Justices DAWKINS, ST. PAUL; and THOMPSON.  