Thompson, J.
The respondent was convicted of an assault, being armed with a dangerous weapon, with intent to murder Thomas 0. Seaver. At the time of the assault, Seaver was the judge of probate for the district of Hartford, and had been such judge for several years prior thereto. In September, 1895, the respondent was adjudged by Judge Seaver as probate court, to be an unsuitable person to have the care and custody of his minor child, Mabel, and one J. C. Enright was appointed her guardian. In January, 1897, Enright, by proceedings in chancery, caused the respondent to be enjoined from interfering with the person of the child, Mabel, or her care and custody by Enright as her guardian. In March, 1897, the wife of the respondent, brought her petition against him for a divorce on the ground of intolerable severity and cruel and gross neglect and refusal to support, he being of sufficient ability to support her, and prayed for the custody of the children. This petition was returned to the May term of Windsor county court for 1897, and- on hearing at that term was dismissed, and the injunction against the respondent was dissolved by the chancellor at the same time the petition was dismissed, which was August 19, 1897. The assault, which was made by shooting, occurred the 22d of the same month.
The evidence on the part of the State tended to prove malice and premeditation on the part of the respondent to commit the assault, both before and at the time it was made.
The respondent was improved as a witness in defence, and his testimony tended to show that immediately after hearing the decision of the court denying the divorce, and dissolving the injunction, he made an unsuccessful attempt to obtain his child, by applying first to Miss Joy, with whom the child was boarded, and then at Judge Seaver’s; that he was there informed by Judge Seaver’s son that he must get the court’s written order and present it to Judge Seaver if he wanted his child; that he obtained a copy of the order dissolving [528]*528the injunction, the evening of August 21st, and on the following morning came to the village after Mabel, going first to Miss Joy’s and then, by her direction, to Judge Seaver’s, whither the child had gone to be made ready for church by her mother, who was then in the employ of Judge Seaver as a domestic; that he was there for no other purpose and with no other thought but to get his child, and with no idea or thought that Judge Seaver would refuse him his child, and wholly without thought or purpose of doing him any harm; that Judge Seaver ordered him to leave his house, and that while he was obeying this order, Judge Seaver followed him out upon the porch, and assumed such a belligerent attitude as to put him in fear of great bodily harm, and that thereupon he shot him in self-defence.
(1) As bearing upon the claim of the respondent that he had full faith that the child would be given him on presentation of the order of the chancellor, and as corroborating his position as to his understanding that he had a right to his child, and to rebut the claim that he was at Seaver’s at the time of the assault for an improper purpose, the respondent offered in evidence the remarks made by the chancellor in open court, when he made the order dissolving the injunction. The evidence tended to prove that the respondent while in Seaver’s house just before the shooting, produced the order dissolving the injunction and handed it to Judge Seaver, who read it and handed it back to him with the remark that the respondent must see Enright. The court below admitted in evidence the order dissolving the injunction, but excluded the remarks of the chancellor, to which the respondent excepted. A majority of the court hold that the offer included inadmissible matter. Hence, even if it included that which was admissible, it was not error to exclude the entire offer.
(2) The letter of the respondent to Enright was admissible as it tended to show a hostile state of mind on the part of the respondent toward Judge Seaver.
[529]*529(31 Judge Seaver denied having assumed a belligerent attitude toward the respondent as claimed by him in his testimony. In rebuttal it was clearly admissible to show by Judge Seaver that he had no intention of making an assault upon him, as the presence or absence of such an intent bore directly upon the probability of whether or not he assumed the attitude claimed by the respondent. That it may also have strengthened the case made by the State in opening, did not render it inadmissible in rebuttal, so long as it had a tendency to disprove the defence set up by the respondent. However, were it not strictly in rebuttal, it cannot be said that it was error to admit it at the stage of the trial when it was received, as it does not appear that it was notadmitted as a matter of discretion by the trial court. The order of evidence, even in a criminal case, is a matter resting in the discretion of the trial court, provided the respondent has a fair opportunity to meet the evidence produced against him. State v. Magoon, 50 Vt. 337.
(4) While the case was on trial, the jury were kept together by the officer in charge: On a Sunday morning during the trial, he took them at their request to the morning service of the Universalist church, about forty rods distant from the hotel where they were being lodged. Near the close of the service, a juryman became suddenly ill so that it was necessary for him to leave the church, the officer consenting, supposing that he would directly return. The juryman remained a few minutes on the porch and feeling no better, walked directly back to the hotel alone and went into the water closet of the hotel. As he came out of the water closet, he met the officer with the other eleven jurors, and they went together to their rooms. After verdict and before judgment and sentence, the respondent moved to set aside the verdict because the jury were allowed to thus separate. Upon the testimony of the juror who separated from the other eleven, the trial court found that the separation continued from twenty to twenty-seven minutes, and that the [530]*530juror spoke to no person and that no person spoke to him during the separation. Upon the foregoing facts, the court below, as a matter of discretion, overruled this motion, to which ruling the respondent excepted, and he was allowed an exception, if he was entitled thereto as a matter of law. This exception cannot avail him unless as a matter of law, the separation entitled him to have the verdict set aside.
The rules which obtain in the courts of England and in the several states of this country, as to when and how far the jury in a criminal case must be kept together, and as to the effect of the separation with or without the leave of the court, are by no means uniform. In some of the states a very liberal rule is applied in all criminal cases, while in others the doctrine that the jury must be kept together in all such cases, is very strictly enforced. In others again, while the liberal rule prevails in the case of crimes not capital, the practice in capital cases is very strict. In the case of misdemeanors, it is generally conceded in England and in this country, that the courts have the same discretion as in civil cases as to permitting the jury to separate before the case is submitted to them by the charge of the court.
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Thompson, J.
The respondent was convicted of an assault, being armed with a dangerous weapon, with intent to murder Thomas 0. Seaver. At the time of the assault, Seaver was the judge of probate for the district of Hartford, and had been such judge for several years prior thereto. In September, 1895, the respondent was adjudged by Judge Seaver as probate court, to be an unsuitable person to have the care and custody of his minor child, Mabel, and one J. C. Enright was appointed her guardian. In January, 1897, Enright, by proceedings in chancery, caused the respondent to be enjoined from interfering with the person of the child, Mabel, or her care and custody by Enright as her guardian. In March, 1897, the wife of the respondent, brought her petition against him for a divorce on the ground of intolerable severity and cruel and gross neglect and refusal to support, he being of sufficient ability to support her, and prayed for the custody of the children. This petition was returned to the May term of Windsor county court for 1897, and- on hearing at that term was dismissed, and the injunction against the respondent was dissolved by the chancellor at the same time the petition was dismissed, which was August 19, 1897. The assault, which was made by shooting, occurred the 22d of the same month.
The evidence on the part of the State tended to prove malice and premeditation on the part of the respondent to commit the assault, both before and at the time it was made.
The respondent was improved as a witness in defence, and his testimony tended to show that immediately after hearing the decision of the court denying the divorce, and dissolving the injunction, he made an unsuccessful attempt to obtain his child, by applying first to Miss Joy, with whom the child was boarded, and then at Judge Seaver’s; that he was there informed by Judge Seaver’s son that he must get the court’s written order and present it to Judge Seaver if he wanted his child; that he obtained a copy of the order dissolving [528]*528the injunction, the evening of August 21st, and on the following morning came to the village after Mabel, going first to Miss Joy’s and then, by her direction, to Judge Seaver’s, whither the child had gone to be made ready for church by her mother, who was then in the employ of Judge Seaver as a domestic; that he was there for no other purpose and with no other thought but to get his child, and with no idea or thought that Judge Seaver would refuse him his child, and wholly without thought or purpose of doing him any harm; that Judge Seaver ordered him to leave his house, and that while he was obeying this order, Judge Seaver followed him out upon the porch, and assumed such a belligerent attitude as to put him in fear of great bodily harm, and that thereupon he shot him in self-defence.
(1) As bearing upon the claim of the respondent that he had full faith that the child would be given him on presentation of the order of the chancellor, and as corroborating his position as to his understanding that he had a right to his child, and to rebut the claim that he was at Seaver’s at the time of the assault for an improper purpose, the respondent offered in evidence the remarks made by the chancellor in open court, when he made the order dissolving the injunction. The evidence tended to prove that the respondent while in Seaver’s house just before the shooting, produced the order dissolving the injunction and handed it to Judge Seaver, who read it and handed it back to him with the remark that the respondent must see Enright. The court below admitted in evidence the order dissolving the injunction, but excluded the remarks of the chancellor, to which the respondent excepted. A majority of the court hold that the offer included inadmissible matter. Hence, even if it included that which was admissible, it was not error to exclude the entire offer.
(2) The letter of the respondent to Enright was admissible as it tended to show a hostile state of mind on the part of the respondent toward Judge Seaver.
[529]*529(31 Judge Seaver denied having assumed a belligerent attitude toward the respondent as claimed by him in his testimony. In rebuttal it was clearly admissible to show by Judge Seaver that he had no intention of making an assault upon him, as the presence or absence of such an intent bore directly upon the probability of whether or not he assumed the attitude claimed by the respondent. That it may also have strengthened the case made by the State in opening, did not render it inadmissible in rebuttal, so long as it had a tendency to disprove the defence set up by the respondent. However, were it not strictly in rebuttal, it cannot be said that it was error to admit it at the stage of the trial when it was received, as it does not appear that it was notadmitted as a matter of discretion by the trial court. The order of evidence, even in a criminal case, is a matter resting in the discretion of the trial court, provided the respondent has a fair opportunity to meet the evidence produced against him. State v. Magoon, 50 Vt. 337.
(4) While the case was on trial, the jury were kept together by the officer in charge: On a Sunday morning during the trial, he took them at their request to the morning service of the Universalist church, about forty rods distant from the hotel where they were being lodged. Near the close of the service, a juryman became suddenly ill so that it was necessary for him to leave the church, the officer consenting, supposing that he would directly return. The juryman remained a few minutes on the porch and feeling no better, walked directly back to the hotel alone and went into the water closet of the hotel. As he came out of the water closet, he met the officer with the other eleven jurors, and they went together to their rooms. After verdict and before judgment and sentence, the respondent moved to set aside the verdict because the jury were allowed to thus separate. Upon the testimony of the juror who separated from the other eleven, the trial court found that the separation continued from twenty to twenty-seven minutes, and that the [530]*530juror spoke to no person and that no person spoke to him during the separation. Upon the foregoing facts, the court below, as a matter of discretion, overruled this motion, to which ruling the respondent excepted, and he was allowed an exception, if he was entitled thereto as a matter of law. This exception cannot avail him unless as a matter of law, the separation entitled him to have the verdict set aside.
The rules which obtain in the courts of England and in the several states of this country, as to when and how far the jury in a criminal case must be kept together, and as to the effect of the separation with or without the leave of the court, are by no means uniform. In some of the states a very liberal rule is applied in all criminal cases, while in others the doctrine that the jury must be kept together in all such cases, is very strictly enforced. In others again, while the liberal rule prevails in the case of crimes not capital, the practice in capital cases is very strict. In the case of misdemeanors, it is generally conceded in England and in this country, that the courts have the same discretion as in civil cases as to permitting the jury to separate before the case is submitted to them by the charge of the court. In this state, the practice has been in cases of misdemeanors, to permit the jury, in the discretion of the court, to separate, while in the case of felonies not capital, the practice has not been uniform in respect to permitting the jury to separate after they were sworn for the case, when the respondent consented to such separation. In capital cases, no separation has been allowed. The crime with which the respondent is charged is a felony by statute but not capital. Y. S. §§ 5166, 4918. In such a case, under the circumstances disclosed in the case at bar, the better rule, supported by the weight of reason and authority, is that where the separation consists of the temporary absence of a single juror, it will be no ground for setting aside the verdict and granting a new trial, unless there are other circumstances of misconduct or abuse. The conduct of such a juror should be scrutinized [531]*531with care, and if anything is disclosed showing a reasonable cause to believe that the separation of the jury has given rise to any improper practice or prejudicial misconduct, the verdict should be set aside. 2 Thomp. on Trials, § 2549 and notes thereto; Proffatt on Jury Trial, §§ 394, 395; note to McKinney v. People, 43 Am. Dec. 75-87; note to Hilton v. Southwick, 35 Am. Dec. 258; 1 Bish. Cr. Prac. (1st ed.) §§ 824, 825 and notes, and note 6 to § 823; Com. v. Costello, 128 Mass. 88; People v. Douglass, 4 Cowen 26: 15 Am. Dec. 332; State v. Camp, 23 Vt. 551; Downer v. Baxter, 30 Vt. 467; State v. Cucuel, 31 N. J. L. 249.
It is not necessary to decide whether the court has the discretionary power in criminal trials for felonies not capital, to permit the jury to separate before the case is submitted to them.
It is urged that the fact that the respondent was not prejudiced by the separation oí the jury cannot be shown by the testimony of the juror in fault. The rule in this State is that the testimony of jurors may be received to exculpate themselves and sustain their verdict. Downer v. Baxter, 30 Vt. 475; Clement v. Spear, 56 Vt. 403; Tarbell v. Tarbell, 60 Vt. 486; 2 Thomp. on Trials, § 2623; State v. Cucuel, 31 N. J. L. 249. No exception was taken below to the admission of this testimony. The trial court having found that the respondent was not injured nor in any way prejudiced by the separation of the juror from the other members of the panel, the respondent was not entitled as a matter of law to have the verdict set aside. The court in its discretion might have set it aside, but under the facts found, the exercise of its discretion in denying the motion, was final, and no exception thereto can avail the respondent.
Judgment of guilty upon the verdict. Let sentence be pronounced and execution thereof be done.