
    
      M’Carter v. The Commonwealth.
    June, 1841.
    Criminal Law — Jury—Separation—What Is Not Sufficient to Vitiate Verdict — Case at Bar. — Upon trial of indictment for murder, the jury, not agreeing on a verdict, are, after dark, adjourned over till next morning, and committed to two sheriffs to be enclosed in a room to be prepared for them; in conducting them from the courthouse to their room, one juror separates from his fellows, gets 25 yards from them and the sheriffs having them in charge, tells a servant whom he meets with to take care of his horse, says nothing else to any one, and no one speaks to him; he is immediately pursued by one of the sheriffs, and brought back to the rest of the jury; his separation from his fellows does not exceed a minute, and he was a yet shorter time out of sight of the sheriffs; next morning, jury finds prisoner guilty of murder in the first degree, and court passes sentence of death: Hedd, such separation of the juror from his fellows is no cause for setting aside the verdict.
    Upon a petition for a writ of error to a judgment of the circuit superior court of Mecklenburg. M’Carter was indicted in that court for the murder of one Eitfs, and pleaded not guilty. He was put upon his trial at May term 1841. The jury having heard all the evidence on the first day of the trial, and retired in the evening to consider of their verdict, returned into court, and declaring they could-not agree on their verdict, were adjourned over till the next morning; and the court committed then to two of the deputy sheriffs, to be enclosed and kept together in a room to be prepared for them ; and the sheriffs were instructed and sworn so to keep them together, and not themselves to speak with them touching this prosecution, and also not to permit any person not of the jury to speak to them on any . subject whatever. The jury returned into court next morning, and rendered a verdict finding the prisoner guilty of murder in the first degree. Whereupon, he moved the court to set aside the verdict, and grant him a new trial, upon the ground that one of the jurymen had improperly separated from his fellows. And upon this motion he proved by the testimony of one of *the jurymen, named Jones, that on the evening of the trial, when the sheriffs were conducting the jury to the room prepared for them for the night, upon getting o.ut of the courthouse, he (Jones) stepped a little way from the other jurors to give orders for the safe keeping of his horse, and by the time he got round the courthouse, he was overtaken by one of the sheriffs in whose charge the jury was, who said he had done wrong, and must immediately return; which he accordingly did; having spoken to no person but a negro servant, and to him lie said nothing but to give directions about his horse, and that no person spoke to him, the juryman. Another of the jurymen testified, that when the jury left the courthouse on their way to the room prepared for them for the night, in charge of the sheriffs, and had got about thirty-six yards from the door of the courthouse, something was said about the juryman Jones being missing and separated from the others; upon which the jury immediately stopped; and one of the sheriffs, Thomas, directed the other, Blanch, to go instantly after Jones, which Blanch did, Thomas remaining with the rest of the jury ; it was then quite dark. It appeared by the testimony of the sheriffs, that in conducting the jury out of the courthouse to the room in which they were to be enclosed for the night, Thomas went before, and Blanch with a candle followed, the jury; that in going down stairs from the court room, the juryman Jones told Blanch, that he did not know what to do about his horse, upon which Blanch desired the tavernkeeper who was close behind, to have the horse taken care of ; that after getting out of the courthouse door, and a few yards from it, one of the jury told Blanch that Jones was gone, upon which Blanch called to the other sheriff Thomas to stop, handed him the candle, and went immediately after Jones ; that Blanch did not at first see Jones, but after getting two or three steps from the candle, he saw Jones about twenty or twenty-five yards| ^before him, no person being near him, and then ran after and came up with him ; that Jones had just stopped when Blanch got to him ; Blanch told Jones he must not speak to any one, and instantly conducted him back to the jury ; and then all proceeded together to the room prepared for them. In the opinion of both sheriffs, Jones could not have been separated from the rest of the jury more than a minute; and he was out of sight of the sheriff Blanch for a yet shorter time. And one of the jurymen who was also examined, said he thought that Jones was not separated from the rest of the jury more than five seconds. Upon this state of the fact as to the alleged separation of the juryman Jones from his fellows, the court overruled the prisoner’s motion for a new trial; he excepted to the opinion ; and the court passed sentence of death upon him.
    And now he presented a petition to this court for a writ of error, on the ground that the court ought to have set aside the verdict, and granted him a new trial, upon the evidence of the separation of the jury, and that after dark.
    
      
      Juries — Separation—Effect.—As to what separation of the jury is sufficient to vitiate the verdict, the principal case is cited in foot-note to Com. v. M’Caul, 1 Va. Cas. 271; Thompson v. Com., 8 Gratt. 640, and foot-note; Philips v. Com., 19 Gratt. 540 (see foot-note); State v. Harrison, 36 W. Va. 733, 15 S. E. Rep. 983. And in State v. Cartright, 20 W. Va. 43. the principal case is cited on the riuestion of receiving jurors’ affidavits to set aside their own verdicts for misconduct.
      See generally, monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   PER CURIAM,

unanimously, writ of error denied.  