
    Moss versus Commonwealth.
    1. Where, in pursuance of an indictment for murder, a manslaughter was rendered and sentence imposed therefor, and it appeared that during an adjournment of the trial one of the jurors was absent for two days in the custody of a sworn officer, and by permission of the court,'under suitable instructions : verdict for
    
      Held, that such separation of the jury was not sufficient ground for reversal of the judgment.
    
      Held, further,'that in view of the verdict, the same rule should bo applied as if the prisoner had been indicted and tried for manslaughter only: in which cases jurors may, in the discretion of the court, be permitted to separate, after being duly cautioned, without creating any legal presumption that undue influence thereby operated on their minds.
    
      Ü. Semble, That the rule is otherwise where the conviction is for a capital offence, and the commonwealth must then show affirmatively that no improper influence operated on the mind of the juror during Ms absence.
    October 7th, 1884.
    Before Mebcub, C. J., GORDON, Pax-son, Tbunkey, Stbrrett, Green, and Clark, JJ.
    Error to the Court of 0_yer and Terminer of Westmore-land county: Of October Term, 1884, No. 46.
    Indictment of John T. Moss for the murder of James McGugan. Plea, not guilty.
    The cause was called for trial before Hunter, P. J., and on November 21st and 22d, 1888, jurors wore duly chosen and sworn. The case was opened and witnesses called and examined on behalf of the commonwealth until about noon on November 24th, when the following communication was presented to the court by one of the jurors:
    “ I have a brother-in-law that lias bad tbe consumption for almost two years, and is now very low if alive. He has given me instructions with regard to his burial which I would like to carry out, but under the circumstances would like to see him once more if alive, and if lie is dead to give instructions with regard to his burial. Can I get permission from tbe court to go homo in charge of an officer? My family know nothing at all about this trial, besides I know the oath I took. If I am allowed to go, please state how close I shall be bound down — if 1 may be allowed to speak to my family on subjects outside of this trial or not.- Respectfully submitted,
    “James H. Byerly.”
    In pursuance of this request the court allowed tbe juror to absent liimself, as appears by the following minute entered by the clerk:
    “ The foregoing communication having been addressed to the court, and it having been made to appear to the court that tbe person referred to is now dead, and that the juror is desirous to attend the funeral, the court thereupon granted permission to the said juror, James H. Byerly, and placed him in the custody of officer James White, who was duly appointed for that purpose, and sworn according to law, and to whom (the officer as well as the juror) full instructions were given by the court as to the care to be observed, and the clerk was directed to make a full minute hereof.”
    After the return of the juror, Byerly, the trial proceeded in due course, and on December 1st, 1888, the jury returned a verdict of guilty of manslaughter.
    Subsequently defendant’s counsel moved in arrest of judgment and for a new trial, assigning inter alia the following reason:
    “John T. Moss was arrested and indicted for the murder of James McGugan.. The prisoner was arraigned, and after the jury were empannelled and sworn, one of the jurors was permitted to separate himself from his fellow jurors for a period of two days. This was error, because a juror is charged with a prisoner as .soon as he has looked upon him and taken the oath, for he cannot be withdrawn.”
    By the Court : “ The last reason which was so strongly insisted on by counsel in their argument on the motion, viz.: the separation of one of the jury from his fellows during the trial, deserves much consideration. We have examined the authorities cited, and we find that in all of them, except Peiffer v. Commonwealth, 3 Harris 468, there was a separation without the knowledge of the court, and mostly in the absence of an officer. In the Peiffer case the jury were allowed to go to their homes, no one of whom was under the care of an officer. Such is not the case here. Nor do we think the case of Goersen v. Commonwealth, 10 Out. 477, is by any means a parallel case. In numerous cases where there was a separation without the permission or knowledge of the court, and the commonwealth satisfied the court that there had been no tampering with the jury, a new trial was refused.
    “ In the present case, extraordinary care was taken that the jury were properly guarded. The juror who was allowed to separate on an e.rrand of sorrow and philanthropy was an intelligent man. In his petition to the court he stated that he knew the nature of the oath he had taken. He was placed in the hands of an officer who was not only sworn, but fully instructed as to his duty and the care to be observed, and the juror himself was cautioned. The officer took him in charge and returned with him promptly at the appointed time. There was no proof that he was not constantly in the custody of the officer, and the presumption is that the officer obeyed the instructions of tbe court. On the question raised tbe authorities are collated in Wharton Or., PI. and Pr., sections 814 to 826 inclusive, in no one of which can I find what was done here to have been fatal. The only case similar to this (and which has become a matter of history), is the case of the United States v. Gitteau, a case where the nation’s honor required that even though the prisoner was a poor, wicked, bad man, and had slain the most eminent personage, the technical rules of the law should be observed. There, after lengthy argument and due consideration by the court, it was adjudged not to be irregular for a juror to go in custody of an officer to the funeral of his wife.
    “ What we have said here applies as well to the motion in arrest of judgment as to the motion for a new trial.
    “And now, January 19th, 1884, upon due consideration the motions in arrest of judgment and for a new trial are overruled.”
    On February 2d, 1884, tbe court accordingly sentenced the prisoner to pay a fine of six cents, the costs of prosecution, and to undergo an imprisonment at hard labor for four years. Whereupon Moss took this writ of error, assigning for error the refusal of his motions in arrest of judgment and for a new trial.
    
      Uazhtt and II. W. Weir (with whom was Williams), for plaintiff in error.
    -The separation of the jury, permitted in this case, was error, and the judgment should be reversed: Peiffer v. Commonwealth, 3 Harris 466 ; McLain v. State, 10 Yerger 241 ; Hines v. State, 8 Humph. 597; Wiley v. State, 1 Swan. 256 ; State v. Prescott, 7 N. H. 287 ; Woods v. State, 43 Miss. 369; Boles v. State, 13 Smedes & Marsh 398 ,• Goer-sen v. Commonwealth, 10 Out. 477. It did not appear affirmatively that the officer had Byerly in charge all the time ho was absent, and that be had not mingled witb tbe public in general, and had not conversed with any one on the subject of the trial.
    
      Jac. Turney (witb whom were McAfee, Atkinson Peoples, and S. A. Kline'), for defendant in error.
    In all of the cases referred to as bearing on the point presented, and where the objections were held sufficient, the separation was the wilful and voluntary act of tbe juror, or on account of improper license granted by tbe court, without proper restrictions. In no instance, where the court permitted a separation of .the jury and placed them under the care of a proper officer, and under the usual restrictions, has the entire propriety and legality of such separation been questioned, or a new trial granted, for that reason.
   Chief Justice Mercur

delivered the opinion of the court, October 20th, 1884.

The verdict of the jury has removed the higher grade of crime, and reduced the case to one of manslaughter. If the conviction had been of a capital offence, the observance of a more stringent rule would be required. The case of G-oersen v. Commonwealth, decided at the present term (10 Out. 477), was a conviction of murder in the first degree. The sickness of a juror had caused his separation for medical treatment. The commonwealth there assumed, and we held correctly, the obligation of showing affirmatively that no improper influence operated on the mind of the juror during his separation. In case of a conviction of a capital offence the fact of separation further than is necessarily required to enable the jurors to perform their duties as such, and under the care of a sworn officer, creates a presumption of improper influence, which the commonwealth must rebut or remove by clear and satisfactory evidence. In the present case, we think it would have been well on the return of the juror to have inquired of him, and of the officer in charge, whether anything was said or done in the presence of the juror tending to influence his action in the case. As, however, there is no evidence nor averment of any such influence, we cannot hold the mere separation of the juror in the custody of a sworn officer, and by the permission of the court, is such an act as to call for a reversal of the judgment.

The strictness of the early English rule in excluding jurors from all outside intercourse, in cases not capital, is very much relaxed in this country. In view of the verdict, and for the purpose we are now considering, we think the same rule should be applied as if the prisoner had been indicted and tried for manslaughter only. In such a case jurors may, in the discretion of the court, be permitted to separate after being duly cautioned, without the creation of any legal presumption that undue influence thereby operated on their minds. Whatever is necessary to preserve the purity of trial by jury must be adhered to, and strictly observed. Whatever is not necessary to secure a fair and impartial trial must not be so magnified as to defeat the ends of justice. As we do not consider this to be a capital case, but one of the grade for which the prisoner was convicted, we deem it unnecessary to refer to the authorities cited. We merely say they are not applicable to this case, which is for a lesser crime.

Judgment affirmed.  