
    No. 9744.
    The State of Louisiana vs. Ed. Deas.
    The Supreme Court will nob consider evidence submitted by the accused in a criminal case, in support of a motion for a new trial, unless said evidence,be embodied in, or otherwise made part of, a hill of exceptions reserved by the defendant to the refusal of a new trial by the judge. •
    This Court cannot consider a complaint of alleged misconduct of an officer in charge of jury, not previously submitted to the trial judge and suggested for tho first timo on appeal^ and by brief or argument.
    APPEAL from tlie Seventeentli'District Court, Parish of East Baton Eouge. Burgess, J.
    
      M. J. Cunningham, Attorney General, and L. D. Beale, District Attorney, for the State, Appellee:
    The ruling of the tiial judge upon the competency of a juror who did not serve upon tho jury in a case in which the peremptory challenges were not exhausted, will be reviewed on appeal.
    A juror is competent who swears on his i)oir dire that,’notwithstanding his previous impressions, “his opinion would readily yield to the evidence if different from what he had heard, and that lie could give the accused a fair and impartial trial.”
    When accused is on trial for peijury conmiittod in a former case, evidence of thieats and intimidation on his part to influence or prevent evidenco contrary to his own, is admissible in tho instant case as tendiug to show that the perjury in the former case was willful and con upt.
    'The action of tho trial judge in overruling a motion for new tiial will not he reviewed unless a regular and former bill of exceptions thereto is taken. The statement appended to the motion and signed by the judge, that counsel excepted and tendéis his hill, will not suffice.
    .Evidence taken on the trial of a motion for now trial will not ho noticed unless embodied in a regular formal hill of exceptions, actually or by reference as part thereof, although it may he in tho record.
    ,A juror will not be beard as a witness to impeach the finding of the jury of which ho was a member, by showing misconduct on part of himself or fellows, or the unusual means by which they agreed to a verdict.
    
      .A juror has tho right to influence the action of his fellows by all fair arguments and reasoning, and give them the benefit during their deliberations of all the information he may have hearing upon the case.
    It is not a “separation,” or misconduct, such as to vitiate a verdict, for the foreman to advance to tho stand and ask the judge a question in open court, although it is more regular to ask all instructions from the box — particularly when the explanation of tho judge slious that the question and answer were not unfavorable to the interest of tho accused. 4 L’. 27; 23 Ann. 148; 8 It. 590; Thompson & Merriam on Juries, § 362, No. 2, p. 429, § 355, p. 423
    
      JE. W. Robertson and K. A. Gross for Defendant and Appellant:
    Any private communication whatever between tho judgo and any member of the'jurv, after the jury had retiied to consider their verdict, vitiates the finding. Thompson & Mer* iiam on Juries, sec. 355, and cases cited. A judge is not authorized to give jurors separate and private instructions out of the hearing and without the knowledge of counsel on both sides. State vs. Ifrisby, 10 Aim. 144; Thompson and Meriiam, sec. 357.
    
      The mere presenco of an oificer of court at deliberations of tbe jury, and conversation about-the case, invalidates the veidict. Thompson and Merriara,-seo. 362.
   The opinion of tlie Court was delivered by

Poci-iá, J.

The record contains numerous grounds of'complaint by tbe - defendant, who was convicted of perjury, but two questions only are discussed by bis counsel on appeal.

The others are very trivial and are therefore abandoned.

In a motion for a new trial, tbe accused urges two grounds of misconduct of the jury, one of which is not pressed on appeal.

Tbe ground which bis counsel discuss is that tlio district judge, allowed the foreman of the jury to step out of the ranks of his fellows up to the judge’s seat, and that he then asked and obtained in private-an instruction touching the case in hand.

The record contains a considerable mass of testimonjr which was taken on that point. But it is not embodied in, legally connected with, or even referred to, a hill of exceptions to the ruling of the district judge refusing the new trial prayed for. Hence, it cannot he considered.

The only attempt made by defendant’s counsel toward drafting a bill, of exceptions from tbe judge’s refusal of the new trial prayed for, is in the following words:

“ To the judgment of the court overruling this motion for a new trial-accused excepted, and tenders his hill for signature and approval.”

The reasons of the judge on his refusal of1 the motion, which were-given at length and in writing, are not even embodied in, attached or referred to, the purported hill. We can but express our surprise at tbe apparent hope of counsel that we could sanction sucli glaringly deficient proceedings, '

Repeated adjudications of this Court should have taught them the-proper and only course to pursue in the premises. In Nelson’s case, 32 Ann. 842, we culled from our jurisprudence and we formulated the-rule that “This Court cannot take cognizance of the evidence upon which a motion for a new trial was refused by the- court a qua, unless that evidence is embodied in a hill of exceptions.”

The doctrine was immediately thereafter applied in the ease of Given, 32 Ann. 782, in which we took occasion to say:

“Evidence to show the alleged misconduct of the jury was introduced and taken down in writing, and is in the record, hut it is- not embodied in, or attached to, a bill of exceptions,” and under the authority of the Nelson case we declined to consider the evidence.''

Tlio same rule received similar application in the following cases: State vs. Williams, 36 Ann. 742; State vs. Jackson, 36 Ann. 769; State vs. Belden, 36 Ann. 824.

We are therefore stripped of all power to consider or jiass npon the alleged misconduct of the jury.

On appeal, and for the first time, defendant’s counsel make the point that one of the deputy sheriffs in charge of the jury committed the grievous wrong of conversing with some of the jurors about the merits of the case on which they were then deliberating.

But tbe simple statement that the point was made only on appeal is sufficient to dispose of the matter. To pass on a point which lias not been submitted to the trial judge, would be assuming original jurisdiction. This wo have not tho power and much less the disposition to do.

The defendant has had a fair trial.

Judgment affirmed.  