White, J.
On the 20th day of August, 1873, an indictment was filed in the district court of Cooke county, Texas, charging the appellant, William Early, with having, on the 24th day of February, 1873, in Cooke county, murdered one Charles M. Winters. When this indictment was presented and filed, the Hon. C. C. Binkley was judge of the district court of Cooke county. The case was continued at the two terms subsequent to its filing, on the application of the defendant. At the March term, 1874, the Hon. J. M. Lindsay had become judge of the twelfth judicial district, composed of the counties of Grayson, Cooke, Montague, Wise, and Denton (see Acts of 1864, p. 7), and was presiding over and holding a regular term of his court in Cooke county. Prior to the time of his elevation to the bench he had been employed by the defendant, Early, as his counsel in this case.
On the 4th of March the defendant filed his motion for a change of venue in the case, owing to the disqualification and incompetency of the said judge to try the same. The order changing the venue was made, and the portion of it which is material to this case is in the following, language :
“ It is, therefore, ordered by the court that the change of venue be allowed, and that the venue in this cause be changed to the county of Collin, that being the nearest [259]*259county site free from objection; and that the clerk of this court transmit to the clerk of the district court of Collin county the original papers in this cause, and a transcript of ■all the proceedings had therein.”
It is, perhaps, necessary and proper, in order to arrive at a correct understanding and appreciation of the grounds of the plea to the jurisdiction of the court afterwards filed, that we should here state that, before this order changing the venue of the case was made by Judge Lindsay, an act had been passed by the legislature, entitled “An act to establish, organize, and define the powers of the criminal district courts in and for the cities of Dallas, McKinney, and Sherman” (Acts of thirteenth legislature, pp. 210-212, Pase. Dig., Art. 6172), the city of McKinney being the county site of Collin county, and Sherman the county site of Grayson county.
It does not appear to be disputed, and the evidence establishes the fact, that Sherman, the county site of Grayson county, is nearer to Gainesville, the county site of Cooke county, than the city of McKinney, in Collin county, was and is to Gainesville, the county site of Cooke county.
This act of the thirteenth legislature was passed in pursuance of the power conferred upon the legislature by the 1st section of Article 5 of the Constitution of 1869; and, in conformity with this section of the Constitution, the 1st section of the act provided that the courts established in each of the counties mentioned should be courts “ of original and exclusive jurisdiction in all cases of felony, and concurrent jurisdiction in all cases of misdemeanor, co-extensive with the limits of the county wherein said cities are sitiiated.” The 8th section of the act provided that “ the clerks of the district courts, and the sheriffs of the counties wherein said cities are situated, and the district attorneys in whose •districts said cities are situated, shall be the clerk, sheriff, and district attorney of said court, under the same rules and [260]*260regulations as now are prescribed by law for their official acts in the district courts of the state.”
It appears that when the record and transcript in this case were, in pursuance of the order changing the venue, transmitted by the district clerk of Cooke county to the district clerk of Collin county, the latter, after receiving the same, filed it and entered the case on the docket of the district court of Collin county, instead of upon the docket of the criminal district court of McKinney city, of which court, as we have seen, he was also the clerk.
At the first term of the district court of Collin county after the cause was filed in and placed upon its docket, the defendant, Early, applied to the district judge for process for his witnesses, and his application was refused upon the ground that the said court had no jurisdiction in the case. At the next term defendant moved the court to strike the papers from the file of the court, because the court refused to assume jurisdiction of the cause. This motion was sustained, and a further order made by the district court of Collin county at the time in these words : “ That the clerk of this court is ordered to transmit the original papers in this cause, together with certified copies of all orders in this cause made here, to the clerk of the district court of Cooke county, Texas.” This order was made on the 20th of August, 1874. In the month of December following, the defendant applied for, and obtained, a writ of habeas corpus from the Hon. Silas Hare, judge of the criminal district courts for the cities of Dallas, McKinney, and Sherman, and the writ coming on to be heard by the last-named judge, in chambers, at the city of McKinney, he disposed of the same by remanding the applicant “ to the custody of the sheriff of Collin county, to be safely kept so that he may be brought before the criminal district court for the city of McKinney, in Collin county, on the first Monday in February, 1875 ; and it is further ordered that the clerk [261]*261of said court enter this cause upon the docket of said court, and issue all necessary process, preparatory to the trial of said cause, that may be demanded by the state or the defendant.”
When the next term of the criminal district court of McKinney city was in session, the defendant, Early, filed a plea to the jurisdiction of the court, alleging that, for the reasons above stated, the cause was improperly and without legal authority upon the docket of said court; that the first error committed was the order of Judge Lindsay in changing the venue in this case, the error being that the case should have been sent to Sherman, in Grayson county, because that city, and not McKinney, was the nearest county site to Cooke county; and that, if it had been properly sent to Collin county, then it was filed in the district court; and that, after it was dismissed and ordered back to Cooke county, it could not be legally placed on the files and docket of the criminal district court of McKinney city. The district attorney filed- a demurrer and exceptions to this plea, which, being heard, were sustained by the court.
At the June term, 1875, of the criminal district court of McKinney city, the case was called and tried, and the defendant, was found guilty of murder ill the first degree by the verdict of the jury, and his punishment assessed at imprisonment to hard labor for life in the penitentiary.
The defendant made a motion for a new trial, the principal grounds of which may be summed up in the following, viz.:
1st. The action of the court upon defendant’s plea to the jurisdiction.
2d. The separation of the jury after they were impaneled, during the progress of the case, and the action of the court with reference thereto.
This motion for a new trial was overruled, and defendant [262]*262saved Ms exception to the ruling of the court and gave notice of appeal.
We find in the record several other Mils of exceptions saved by the defendant 'during the trial, which were not insisted upon on the motion for a new trial, but which, nevertheless, if material, it is our duty to pass upon. Bishop v. The State, 43 Texas, 390. Still, we do not feel called upon, under the rule of practice settled by the authority just cited, to discuss and comment seriatim upon all the grounds of error complained of; our duty seems only to require that we should notice those errors respecting wMch, in our judgment, there may be some question, or some contrariety of opinion §,s to the propriety and correctness of the ruling. In regard to the others we will simply state that the supposed grounds for error which are not noticed and commented upon may be considered as not well taken; and, consequently, as to them the rulings of the court are sustained.
1st. As to the sufficiency of the indictment: It is contended that the indictment is insufficient in that it fails in two important essentials required by the statute, 2d and 3d subdivisions of Article 2863, Paschal’s Digest—subdivision. 2d providing that 1 £ it must appear therefrom that the same was presented in a court having jurisdiction of the offense set forth,” and subdivision 3d, that ££ it must appear to be the act of a grand jury of the proper county.”
We copy from the record so much of the proceedings of the lower court as have bearing upon this matter, in the following words:
“ The state of Texas, county of Cooke. In the district court of Cooke county, Texas; August term, A. D. 1873:
“Be it remembered that, on the 18th day of August, 1873, a regular term of the district court, within and for the [263]*263county of Cooke, was begun and held at the court-house in the town of Gainesville; present, and presiding, the Hon. C. C. Binkley, judge, J. M. Hobbs, sheriff, and F. S. Cleaves, clerk; when and where the following proceedings were had, to wit:
“ The State of Texas v. William Early. August 20, 1873.
“How at this time come the grand jury of Cooke into open court, and, through their foreman, W. C. Lillard, presented the following bill of judgment, viz.: Ho. 563. The State of Texas v. Wm. Early, murder.” (We are satisfied, and will presume the fact to be, that the word “judgment,” as above written, is a clerical error in copying the entry from the minutes, and that the word should have been “indictment.”)
Hext in regular order of pleadings comes the indictment; and here we make the following extract from the transcript: “ The State of Texas, plaintiff, v. William Early, defendant. No. 563. ,
“In the name and by the authority of the state of Texas : The grand jurors of the state of Texas, duly elected, charged, and sworn to inquire into and true presentment make of all offenses committed in the body of the county of Cooke, upon their oaths present, in the district court for said county, that Wm. Early, late of said county, on the twenty-fourth day of February, A. D. 1873, with force and arms, in the county of Cooke and state aforesaid,” etc.
Considering these proceedings in connection with the objection raised by the defendant to the sufficiency of the indictment, we feel warranted in holding the indictment good, and not obnoxious to the 2d and 3d subdivisions of Article 2873, Paschal’s Digest; and we are sustained in thus holding by the rulings of our supreme court in Bosshard v. The State, 25 Texas (Supp.), 207; Williams v. The State, 30 Texas, 404; Golden v. The State, 32 [264]*264Texas, 737 ; and we refer especially to the case of Hudson v. The State, 40 Texas, 12.
2d. The jurisdiction of the criminal district court of McKinney city to try the case on the change of venue : We have seen that the venue was changed by Judge Lindsay from Cooke to Collin county because of his disqualification to try, he having been of counsel for the defendant before his elevation to the bench. His action was predicated on the authority of section 11 of Article 5 of the Constitution of 1869, which is in these words : “ When a judge of the district court is thus disqualified, the parties may, by consent, appoint a proper person to try the case, and, upon their failing to do so, the case shall be transferred for trial to the county in the adjoining district whose county seat is nearest to that of the county where the case is pending.”
This language, we take it, is not merely directory, but mandatory; and, according to our construction of its meaning, though the county site of Grayson county was nearer to Cooke than that of Collin, and though it has a criminal district court competent to try the case if properly brought before it, still, that county being in the same judicial district with Cooke, there was no discretion left the judge, but it was his duty to follow the plain rule of the Constitution, and send it to the nearest county site in the adjoining district.
Counsel for the appellant seem to labor under the impression that the rule of procedure which should have governed and regulated the action of the court in the premises is the one prescribed in Article 2998, which provides that, “upon the grant of a change of venue, the criminal cause shall be removed to some adjoining county, the court-house of which is nearest to the court-house of the county where the prosecution is pending, unless it be made to appear in the application that such nearest county is subject to some [265]*265objection sufficient to authorize a change of venue in the first instance.” This rule, however, is not applicable in cases where the change of venue is effected on account of the recusation of the judge for disqualification, but was intended to operate in all other cases where the change of venue was taken for the causes and in the manner indicated in Article 2994, Paschal’s Digest; and we are fully borne out, in this view of the construction placed upon the applicability of Article 2998, by Article 2995, which was the rule in cases of disqualification of judges up to the adoption of the Constitution of 1869, and, had the latter rule been in force, the judge would necessarily have sent the case to “the nearest county out of his district, and free from the like objection.”
Judge Lindsay was, then, clearly right in ordering the venue changed to Collin county, and he was unquestionably right in ordering the papers in the case transmitted to the district clerk of Collin county, who, as we have heretofore seen, was both clerk of the district court of Collin county and clerk of the criminal district court of the city of McKinney, in Collin county. Coming into his possession, as the record did, it was clearly the duty of the district clerk to file the papers in, and docket the cause upon the docket of, the criminal district court of the city of McKinney; for, with the statute creating that court, of which he was one of the officers, before him, in plain and unambiguous terms conferring upon that court original and exclusive jurisdiction, in all cases of felony, co-extensive with the limits of Collin county, it does appear as if he should have known that the case should not have been filed in the district court, that court having been deprived by the' same act, as a necessary consequence, of all jurisdiction. Had this been done, we apprehend this question would not have been presented, as it has been, to the jurisdiction of the court. Instead of doing this, the district clerk, as we have-[266]*266seen, filed and docketed the cause in the district court, and must have done so of his own motion, for he had no order to that effect from any authority, so far as appears.
From the above statement and reasons it must be apparent that the status of the case was about this : It was legally in Collin county, but was wrongfully on the docket of the district court-, having been placed there by a ministerial officer acting under no authority. The judge of the district court recognized his want of jurisdiction, refused to issue process in the case, and, upon defendant’s motion to dismiss, not only dismissed the case_, but assumed authority to-order the case to be returned to Cooke county. This order, we think, he had no authority to make, and it was of as little binding force and efficacy as the act of the clerk was-in conferring jurisdiction by placing it upon the docket. Both acts were simply null and void, and the case, when heard by Judge Hare upon habeas corjpus, was already, by virtue and operation of law, within the jurisdiction of the-criminal district court of McKinney city—the act of filing* and docketing the case in that court alone remaining to be done. This act Judge Hare ordered to be done, and, with the law and facts as we have stated them above, we cannot-well see how he could have done otherwise. These views-of this branch of the case, we think, will be found to be sustained by a reference to the decision of our supreme court at the Tyler term, 1875, in the case of S. W. March v. The State, wherein the powers, authority, and jurisdiction of criminal district courts of cities, established by law in accordance with the 1st section of Article 5 of the Constitution of 1869, are ably discussed, considered, and adjudicated. March v. The State, 44 Texas, 64.
3d. Another question presented by counsel in their brief for appellant, and one which was not presented directly on the trial in the lower court, is that the record nowhere discloses the fact that defendant was ever arraigned or called upon to [267]*267plead, or that he did plead to the indictment. The necessity for arraignment and plea, and especially for a plea, before a party charged with a capital felony can be tried, is a direct command and positive requirement of our statute. We read the following Articles bearing upon the subject:
“There shall be no arraignment of a defendant except, upon an indictment for a capital felony.” Pasc. Dig., Art. 2933.
“ An arraignment takes place for the purpose of reading-to the defendant the indictment against him, and hearing his answer thereto.” Pasc. Dig., Art. 2934.
6 ‘ No arraignment shall take place till the expiration of at-least two entire 'days after the day on which a copy of the-indictment was served on the defendant, unless the right to-such copy or to such delay be waived, or the defendant was-on bail.” Pasc. Dig., Art. 2935.
“ When the defendant is brought- into court for the purpose of being arraigned, if it appear that he has no counsel, and is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him, and the-counsel so appointed shall have at least one day to prepare-for trial.” Art. 2936.
“When the defendant is arraigned, his name, as stated in the indictment, shall be distinctly called, and unless he-suggest, by himself or counsel, that he is not indicted by his true name, it shall be taken that his name is truly set forth, and he shall not thereafter be allowed to deny the-same by way of defense.” Art. 2937.
Article 2941 reads as follows : “ The name of the accused: having been called, * * * the indictment shall he ready and the defendant he ashed whether he is guilty or not.”
“ If the defendant answer that he is not guilty, the same-shall be entered upon the minutes of the court; if he refuses-to answer, the plea of not guilty shall in like manner be-, entered.” Art. 2942.
[268]*268From the words of the statute above quoted, and especially those we have taken the liberty to italicize, it would seem •evident that our law-givers intended to establish, not merely a formal rule of practice and procedure in capital cases, but also intended to make its observance one of the prerequisites to the validity of a trial in all such cases. Had no such rule been expressly provided, still we conceive that this practice would have been none the less obligatory under Article 2493 of our Code of Criminal Procedure, which enacts that ‘ ‘ whenever it is found that this Code fails to provide a rule of procedure in any particular state of case which may arise, and is therefore defective, the rules of the ■common law shall be applied and govern.”
In his Commentaries on the Common Law, the practice is thus lucidly stated by Sir William Blackstone : ‘6 When the offender either appears voluntarily to an indictment, or was before in custody, or is brought in upon criminal process, he is to be immediately arraigned thereon. * * * To arraign is nothing else but to call the prisoner to the bar of the court to answer the matter charged upon him in the indictment. * * * When he is brought to the bar, he is called upon by name to hold up his hand, which, though it may seem a trifling circumstance, yet is of this importance, that, by holding up his hand, constat de persona, .and he owns himself to be of that name by which he is ■called. However, it is not an indispensable ceremony, for, being calculated merely for the purpose of identifying the person, any other acknowledgment will answer the purpose as well; therefore, if the prisoner obstinately and contemptuously refuses to hold up his hand, but confesses he is the person named, it is fully sufficient. Then the indictment is to be read to him distinctly in the English tongue, * * * that he may fully understand his charge. After which it is to be demanded of him whether he be guilty of the crime of which he stands indicted, or not guilty.” [269]*2692 Bl., book 4, side pages 322, 323; 2 Hale’s P. C. 215, 217, 218; People v. Frost, 5 Park. (N. Y.) Cr. R. 52.
Our own supreme court have only in one or two instances-had occasion to consider arraignment in any of its incidents- or relations to trials. In Hendrick v. The State, which was a misdemeanor, and tried before the adoption of our Codes, the defendant was arraigned and pleaded not guilty. The court say: “ The principal office of the arraignment is to fix the personal identity of the accused. Having been arraigned, and pleaded to the indictment, there was no necessity of' other proof of his identity.” 6 Texas, 341.
In Caldwell v. The State, where the objection was the-omission or neglect of the court to have the defendant arraigned before the change of venue, as is provided for in. Article 2997, Paschal’s Digest—the defendant having been arraigned before trial in the county to which the venue was changed—the court held that the omission or neglect of the-court in the first instance was not such error as would be-good on motion for new trial, or motion in arrest. 41 Texas, 92.
In Wilcox v. The State the court simply remark, in passing, that “ even in a capital case the defendant could not be heard (after arraignment) in denial of his true name-having been set forth in the indictment. 31 Texas, 586.
It is to be kept in mind that in this case now under consideration the record nowhere shows that defendant was-ever arraigned, or that he ever pleaded to the indictment,, or that he was ever called upon to plead, and refused to do so, and that thereupon the plea of not guilty was entered for him by the court, under the authority of Article 2942, Paschal’s Digest. On the contrary, the record shows what pleas and objections were made and interposed by the defendant—as, for instance, his pleas to the jurisdiction, and his objections to being placed on trial to answer the indictment in this case; and, if presumptions are to be indulged, the-[270]*270particularity with which these other matters are set forth would indicate the total absence of any pleas or procedure of this character. But we cannot indulge in any presumptions in favor of that having been done which should have been done in such cases.
It is true that the courts of some of the states have held that in cases not capital no actual arraignment or plea was .an essential incident to the trial where their statute law did not limit these formalities, as does ours, to capital felonies. Fernandez and White v. The State, 7 Ala. 511; Malehan v. The State, 30 Ind. 266 ; Newsom v. The State, 2 Ga. 60; Jacobs v. The Commonwealth, 5 Serg. & Rawle, 314. In this last-cited case the court take occasion to say: ‘6 But although we will not reverse for want of an entry of the arraignment on the record, except in cases that are capital according to our acceptation of the term, we still are far from sanctioning its omission in practice in any case of felony.” See, also, Grigg v. The People, 31 Mich. 471.
We have had no opportunity of examining Schriner v. The People, 33 Ill. 276, and The State v. Schoenwald, 31 Mo. 147, cited by Assistant Attorney General Peeler in his very able brief in this case. As far as we have had access to the authorities we have found not a single capital case wherein it was held that the formalities of arraignment and plea could both be dispensed with; on the contrary, there are authorities asserting the doctrine that, even if he were ■so disposed, the defendant could not waive or agree to dispense with both these requisites, and be bound by such agreement. 1 Bishop on Cr. Pro., sec. 125; Douglass v. The State, 3 Wis. 820. See, also, Wilson v. The State, 42 Miss. 639 ; The State v. Lartique, 6 La. An. 404; The State v. Price, 6 La. An. 694; Eiseman v. The State, 49 Ind. 520, and Grigg v. The People, 31 Mich. 471.
We think the true rule is that stated by the supreme ■court of California, in the case of The People v. Corbett. [271]*271They say: “If the defendant had at any time anterior to the trial pleaded not guilty, the defects in the arraignment, or rather the omission to arraign, might have been cured on the ground of waiver; but neither the motion of the defendant for a separate trial, nor the introduction of witnesses by him, nor the fact that the case was argued on his behalf to the jury—nor did all of them combined—cure the want of a plea. There was not only no arraignment, but, over and beyond that, there was no issue for the jury to try. Not only did the defendant not plead, but, inasmuch as the statute opportunity for pleading was never extended to him, he never was under any obligation to plead. A verdict in a criminal cause where there has been neither •arraignment nor plea is a nullity, and no valid judgment can be rendered thereon.” 28 Cal. 328; see, also, The People v. Lightner, 40 Cal. 226.
4th. As to the separation of the jury and the action of the court relative thereto, which is another ground complained of by defendant in his motion for a new trial, the facts are in substance these: On Thursday the jury were selected, impaneled, and sworn; Friday and Saturday were consumed in the investigation of the case. Each night the jury, in charge of an officer, were taken to a hotel in the city of McKinney, and there permitted to sleep. About 3 o’clock, .A. m., on Sunday, whilst the jury were at the hotel, a fire broke out in the city, which consumed a number of buildings, and finally this hotel also took fire and was subsequently burned.
The jury, in getting out of the house, became separated from the officer and each other, and mingled with the crowd who were endeavoring to extinguish the fire, some of them assisting about the fire, and two of them went to their homes. They were thus separated for the space of about an hour, or an hour and a quarter, when they were gotten "together again by the officer, before the fire was extin[272]*272guished, and were kept together till court convened again on Monday morning, when they were placed in the box. The fact of the separation and the circumstances were brought to the attention of the court by the district attorney. The defendant, when asked by the court if he waived any objection on account of the separation of the jury, declined through his counsel to say anything. The court then had the jurors sworn upon their voir dire, and each one interrogated individually. They each and all deposed that no one had spoken to or in his presence with reference to the trial. The court then asked the district attorney and the defendant if they either desired to controvert or inquire into the answers of the jurors, or any of them. This they each declined to do, the defendant answering that he did not. The court then asked, “ Has defendant any objection of any character to proceeding with this cause ? ’ ’ The defendant declined to answer, and also declined to waive anything that maybe in his favor. The' court then asked, “Does the defendant wish to inquire into the fact of the separation of the jury, and the extent thereof?” Defendant answered, “ He does not at this time.” The court then remarked that if the defendant objected to the continuance of the trial the objection would be sustained and the jury discharged. The defendant answered by saying that he waived no right, and declined to say whether he objected to proceeding or not. Whereupon the court ordered the trial to proceed.
Under such circumstances we can well imagine the embarrassment of the court. On the one hand it is expressly provided by our statute that “ after a jury has been sworn and impaneled to try any case of felony they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with the consent of the district attorney and the defendant, and in charge of an officer.” Art. 3070, Pase. Dig. And again: “The jury may be discharged, after the cause is submitted to them, [273]*273when they cannot agree and both parties consent to their discharge, or where they have been kept together for such a time as to render it altogether improbable they can agree ; in this latter case the court, in its discretion, may discharge them.” Pasc. Dig., Art. 3084; Moseley v. The State, 33 Texas, 671.
These are the only provisions of the statute relative to the discharge of a jury in a felony case, except where they are discharged, by operation of law, upon the adjournment of the court. Art. 3085. And under these provisions the only authority conferred upon the court to discharge a jury ex mero motu, and without consent, is that of cases where they have failed to agree.
On the other hand, had the court in this instance, of its own motion, assumed the authority to discharge the jury on account of the separation, or had the district attorney, with permission of the court, entered a nolle prosequi, such action might have been tantamount to, and have operated as, a bar to any further prosecution and as a final acquittal of the defendant, under the constitutional provision that ‘ * no person, for the same offense, shall twice be put in jeopardy of life.” Sec. 12, Art. 1, of the Const. of 1869, and 5th Amend, to the Const, of the United States. There is great conflict of authorities upon this question. Those in favor of the proposition will be found in 1 Whart. Am. Cr. Law, sec. 573, et seq.; 1 Bishop on Cr. Law, sec. 855-863; 7 Am. Rep. 611, and Newsom v. The State, 2 Ga. 60; and those contra may be found cited in Paschal’s Digest of Decisions, sec. 15926, and see, also, The People v. Reagle, 60 N. Y. (Barb.) 527. Without deciding, or feeling called upon to decide, this question, we only refer to it with the view of presenting the embarrassing nature of the circumstances under which the court was required to act.
Nor could the defendant be required to say whether he [274]*274waived Ms rights in the premises. He was on trial for his life, and it was his privilege and right, if he so desired, by declining to say anytMng or refusing to waive any right, to place himself in an attitude to take advantage of any error committed in the proceedings, calculated in any degree to prejudice Ms case. 1 Bishop on Cr. Pro., sec. 998. The court seems to have acted with great delicacy and consideration under the circumstances ; but, having proceeded with the trial to the conviction of the defendant, it is for us to determine whether or not, on account of this separation of the jury, the court should have granted or refused him a new trial on his motion.
In the statute laying down and defining the only grounds in felony cases whereon new trials will be granted, we find it provided as one of the grounds, “ where, from the misconduct of the jury, the court is of opinion that the defendant has not received a fair and impartial trial; and it shall be competent to prove such misconduct by the voluntary affidavit of a juror, and a verdict may in like manner be sustained by such affidavit.” Subdiv. 8 of Art. 3137, Pase. Dig. Separation of the jury has generally been considered a species of “misconduct,” and in such cases the practice has to some extent been adopted in this state of permitting the testimony of jurors to be taken and weighed in determining the existence and extent, or the non-existence, of such misconduct.
One of the earliest cases in which the separation of the jury was discussed by our supreme court was the case of Jones & Jones v. The State, and in that case Lipscomb, J., delivering the opinion of the court, says: “ Where the jury, or any number of them, have separated without the consent of the court, we believe the following rules, laid down by Judge Green in Hines v. The State, 8 Humph. 597, are correct and should be observed: 1st, that the fact of separation having been established by the prisoner, the [275]*275possibility that the juror has been tampered with, and received other impressions than those derived from the testimony in court, exists, and prima facie the verdict is vicious; but, 2d, this separation may be explained by the prosecution showing that the juror had no communication with other persons, or that such communication was upon subjects foreign to the trial, and that in fact no impressions other than those drawn from the testimony were made upon his mind; but, 3d, in the absence of such explanation, the mere fact of separation is sufficient ground for new trial.” 13 Texas, 168.
In other subsequent decisions it would seem that our courts have held substantially that it must be made to appear that such separation did have an effect upon the fairness of the trial, or else the verdict will not be disturbed. The State v. Nelson, 32 Texas, 71; Jenkins v. The State, 41 Texas, 128; Wakefield v. The State, 41 Texas, 556. We will remark, however, that in each of these cases it appears that the separation was that of one or more individual members of the jury, and under such circumstances as rendered it improbable, if not impossible, that, independent of their own evidence, they could have been tampered with. In other cases, where the separation has ' been of a more serious character, it has been held fatal. Walker & Black v. The State, 38 Texas, 367; Brown v. The State, 38 Texas, 483.
As a general rule, applicable alike to all kinds of irregularities in the conduct of the jury, we copy and approve as correct the following extract from the opinion of Shaw, C. J., in The Commonwealth v. Roby, 12 Pick. 496: “ The result of the authorities is that when there is an irregularity which may affect the impartiality of the proceedings—as where meat and other refreshments have been furnished by a party, or where the jury have been exposed to the effect of such influences, or have had communications not author[276]*276ized—there, inasmuch as there can be no certainty that the verdict has not been improperly influenced, the proper and appropriate mode of correction or relief is by undoing what is thus improperly, and may have been corruptly, done; or when the irregularity is in doing that which may disqualify the jurors for proper deliberation and exercise of their reason and judgment—as where ardent spirits are introduced—then it would be proper to set aside the verdict,, because no reliance can be placed upon its purity and correctness. But when the irregularity consists in doing that which does not, and cannot, affect the impartiality of the jury, or disqualify them from exercising the powers of reason and judgment—as where the act done' is contrary to-the ordinary forms and to the duties which jurors owe to the public—the mode of correcting the irregularity is by animadversion upon the conduct of the jurors or of the officers, but such irregularity has no tendency to impair the respect due to such verdict.” See the authorities there cited, and the case of Davis v. The State, 35 Ind. 406, where the above is also cited with approval. See, also, The State v. Prescott, 7 N. H. 287.
Another general rule which we think may be safely deduced from the weight of authorities upon this subject is that a separation of the jury, before bringing in their verdict-in a capital case, does not, per se, render the verdict void, but such verdict will be set aside, or not, according to circumstances. The State v. Miller, 1 Dev. & B. 500; Wyatt v. The State, 1 Blackf. 257; People v. Douglass, 4 Cow. 26; Commonwealth v. McCaul, 1 Va. Cas. 271; Parsons v. Huff, 38 Me. 137 ; The State v. Hester, 2 Jones (N. C.), 83 ; Edrington v. Kiger, 4 Texas, 89 ; The State v. Barton, 19 Mo. 227; The State v. Harlow, 21 Mo. 446; The State v. Igo, 21 Mo. 459; Rex v. Kinman, 2 B. & A. 462; The State v. O'Brien, 7 R. I. 336; 1 Bishop on Cr. Pro., sec. 998, note 4.
[277]*277Applying the law to the facts of this case, and we are constrained to believe that the separation of the jury, under the circumstances, was of a character to call most loudly for the exercise of the judicial discretion in favor of a new trial. In a case involving the momentous issues of life and death there should be no room for doubt as to the purity and integrity of the verdict. It should be above suspicion, and command entire confidence. In this particular case the separation was, no doubt, unavoidable in the first instance, as the jury, impelled by the instinct of self-preservation, fled' from the burning hotel. Mingling with the excited crowd, intent upon the work of saving a burning city and their own property and homes, we can well imagine how, in the contagion of the moment, they should forget everything else and surrender themselves up solely to the dictates of a common humanity. Doubtless no blame can legitimately be attached to their conduct in such extraordinary surroundings. Still, the opportunities for improper influences, even if not improved, were so great that they will be presumed by the law in favor of human life and liberty.
The charge of the court presented the law applicable to the facts in a clear and forcible manner, and was as favorable to the defendant as those facts warranted. Nor do we see any error in the refusal of the court to give to the jury the instructions asked by the defendant.
But, for the reasons above set forth, the case is reversed, because the record does not show that the defendant was ever arraigned, or that he ever pleaded to the indictment, and because the court should have granted a new trial in view of the facts and circumstances connected with the separation of the jury.
Reversed and remanded.