#### *Overbee v. The Commonwealth.

December, 1842.

Criminal Law—Jurors — Separation—New Trial.*— Pending a trial for felony and before the testimony is closed, five of the jury having received permission to retire from the courtroom accompanied by the sheriff, another juror thereupon leaves the jury box without the knowledge of the court, passes out of the courthouse through a crowd of persons collected about the door, and remains . absent a few minutes, after which he returns into court; having (as he deposes) held no communication whatever with any person during his absence; but not having been, during that period, in charge of the sheriff, or even seen by him. The trial proceeds and the prisoner is convicted. Held, such separation of the j uror from his fellows is sufficient cause for setting aside the verdict.

Alexander H. Overbee was tried and convicted, in the circuit superior court of Lee county, at September term 1842, upon an indictment for forgery, and sentenced by the court to imprisonment in the penitentiary for two years, the term ascertained by the jury. After the verdict was rendered, he moved the court to set it aside and award him a new trial, upon the ground that Samuel V. Hargis, one of the jury which tried the cause, had improperly separated from his fellows pending the trial. This motion being overruled, he filed a bill of exceptions to the opinion of the court, wherein the facts of the case were set forth as follows.

On the trial of the cause, before the testimony was closed, five of the jury obtained leave to retire for a brief space from the courtroom, the court directing a deputy sheriff to accompany them, and neither suffer any person to converse with them, nor converse with them himself on the subject of the trial. When these jurors had got ten or twelve feet from the jury box, Samuel V. Hargis, another juror, set off in apparent hurry after them, and it was supposed he would overtake them before they reached the door. The court did not observe his leaving the jury box. There was at the time a considerable *crowd of persons in the courtroom, about the door, and on the pavement outside, extending to the end of the courthouse. The five jurors were conducted by the deputy sheriff beyond the crowd, and around the end of the courthouse, where they stopped for the purpose for which they had retired (to obey a call of nature), and immediately afterwards were conducted back into court. The clerk thereupon proceeded to call over the panel of the jury, when Hargis, who was tenth on the panel, not having answered to his name, the court forthwith ordered the deputy sheriff to go in pursuit of him, which he did, and about a minute afterwards returned with Hargis into court. The deputy sheriff deposed, that he did not see Hargis at any time during his absence from the jury box, until despatched in pursuit of him by the court; when he met him between the door of the courthouse and the end thereof, alone, and walking briskly towards the door. Hargis himself deposed, that on seeing the other jurors leaving the courthouse, he set off after them, and passed round the end of the courthouse to the back thereof, (for the like purpose with the others;) after which, seeing that his horse, hitched to the fence about 60 yards off, was about to break loose, he walked quickly to him, refastened him, and returned as soon as he could to the courthouse, meeting the deputy sheriff at the door. That as he passed out through the crowd, a drunken man took hold of him, wishing to converse with him, (though not *on*the subject of the trial,) but deponent shook him off, refusing to converse with him: that no other person made a like attempt, and that *no*communication of any kind passed between any person and himself, while he was out. That he did not know, or suppose, that he was in charge of the sheriff, or that his conduct was in any degree improper.

On the petition of Overbee, this court awarded a writ of error to the judgment of the circuit court.

*H. S. and D. R. Kane for the plaintiff in error: the attorney general for the commonwealth.

*

Criminal Law—Jurors- *-Separation.—Bee foot-note*to Com. v. McCaul, 1 Va. Cas. 272; Thompson v. Com., 8 Gratt. 638.

The principal case is cited in State v. Harrison, 36 W. Va. 753, 15 S. K. Rep. 983; State v. Cartright, 20 W. Va. 43; Younger v. State, 2 W. Va. 586; Thompson v. Com., 8 Gratt. 643; Philips v. Com., 19 Gratt. 540.

“The judgment of the general court was as follows:

It seems to the court here, that the separation of the jury impaneled for the trial of this case, as set forth in the bill of exceptions, was sufficient cause for setting aside the verdict, and the circuit court ought accordingly to have set aside the same and granted a new trial: Therefore,” judgment reversed, verdict set aside, and cause remanded to circuit court for a new trial to be had therein upon the indictment.

LLIGH, TRY and WILSON, J., dissented.