
    *Commonwealth v. Wormley.
    June Term, 1853.
    [56 Am. Dec. 162.]
    (Absent Lomax, J.)
    Criminal Law — New Trial — Separation of Jury — Case at Bar. — A sheriff to whom a iury is committed in the progress of a criminal trial, walks with them to a neighbouring house, and whilst there withdraws from the room where they are, leaving them in the company of three other persons. Although these other persons swear that there was no allusion by them to the trial during such absence of the sheriff, yet the verdict of the jury against the prisoner is to beset aside, and a new trial directed.
    At the October term 1851, of the Circuit court of Chesterfield county, John S. Worm-ley was indicted for the murder of Anthony T. Robiou. He was tried at the March term 1852, and was found guilty of murder in the first degree. Whereupon he moved the Court for a new trial; first, upon the ground that the verdict was contrary to the evidence; and second, on the ground of mis-behaviour on the part of the deputy sheriff and the jury. The motion on the first ground was overruled. On the second ground, it appeared that the jury, after several days in completing the panel, were sworn on Saturday, and the witnesses for the Commonwealth and the prisoner were also sworn; but before any evidence was given in, the Court adjourned: That the jury were committed to the charge of George W. Snellings, one of the deputy sheriffs of the county; and on the evening of the next day, Sunday the 28th of March, by the invitation of Silas Cheatam, Esq., the clerk of the County court of Chesterfield, who resided about a half mile from the courthouse, the deputy sheriff, accompanied by all of the jury, visited Mr. Cheatam at his residence. On getting there, the deputy sheriff and jury went into the parlour, and Mr. Cheatam, Wm. Amber the son-in-law of Cheatam, and ^Augustus L. Win-free, who was employed in guarding the jail, were all in the parlour with the sheriff and jury. Shortly after getting to Cheatam’s, the sheriff went out of the par-lour, and into another room between which and the parlour there was no connecting door; and when in the room to which he went, the jury were out of his sight. The sheriff remained about five minutes absent from the jury; and during that time the jury remained in the parlour, and the three gentlemen mentioned remained with them, except that Mr. Amber went out for a minute or two, and brought back with him a decanter of spirits, of which most of. the jurors drank once, and some of them .twice, though no one of them drank to any excess. The sheriff left the jury in the same way more than once, going into the same room, and leaving the same persons with them; but he was never absent at one time more than from five to ten minutes. "When the sheriff left the jury, he left no one in charge of them, nor did he admonish them or the other persons present to abstain from having any conversation upon the subject of the trial. He was the son-in-law of Cheatam, and his wife was there at the time. The jury staid at Cheatam’s about an hour. The above was the statement, substantially, of the deputy sheriff. The three persons stated by him to have been with the jury in the parlour were also examined. They concur in their statements with the deputy sheriff; and they all say that whilst the deputy sheriff was absent, there was no conversation between either of them and any of the jurors in relation to the trial. They and the jury conversed freely together in the absence of the deputy sheriff, passing jokes and telling anecdotes, but there was no allusion to the trial.
    The deputy sheriff further stated that on the next Sunday he again had charge o.f the jury, and then permitted several of the jury to drink ardent spirits, without any permission or authority from the Court. But *on both these Sundays neither of the jurors drank enough to affect him.
    The Court, with the assent of the prisoner, adjourned to this Court the following questions:
    1st. Was there such misbehaviour on the part of either the jury or the sheriff as to vitiate the verdict, and entitle the prisoner to a new trial?
    2d. What judgment ought the Court to render on the prisoner’s motion?
    The Attorney General, for the Commonwealth.
    Robert G. Scott, for the prisoner.
    
      
      Separation of Jury. — The principal case is cited in Trim v. Com., 18 Gratt. 988; Philips v. Com., 19 Gratt. 510; State v. Robinson, 20 W. Va. 755; foot-note to Thompson v. Com., 8 Gratt. 637; monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   ETEL/D, J.,

delivered the opinion of the Court.

The Court is of opinion, in answer to the first and second questions adjourned, that the conduct of the sheriff in withdrawing from the jury at the house of Mr. Cheatam, and leaving them in the parlour in company with three other gentlemen, as is set forth in the record, was sufficient to vitiate the verdict of the jury; and that upon that ground a new trial should be awarded to the prisoner.

The Court deems it proper to add, that the conduct of the sheriff in conducting the jury to the house of Mr. Cheatam and withdrawing from them under the circumstances disclosed by the evidence, was such mis-behaviour on the part of that officer as to deserve the animadversion and censure of the Court. The act should be condemned, because its tendency is to impair the purity of the trial by jury in criminal cases.  