Gallaner

The defendant was charged with murder in killing one. A. Garman, a bartender, in a saloon in the town of Keswick in Shasta county, and was convicted of manslaughter. A motion for a new trial was denied and defendant sentenced to state prison for a term of ten years. The appeal is from the final judgment and from the order denying the motion for a new trial.

The first assignment of error and the one mostly relied upon for reversal is that after the case was submitted to the jury and while in the jury-room considering the verdict, one of the jurors drew on the blackboard hanging in the jury-room a diagram of the front of the barroom in which the shooting took place, giving it the appearance of having the door closed. The diagram was made by the juror wholly from his recollection of the testimony and for the purpose of graphically expressing his view upon the condition of affairs at the scene of the homicide. No allusion was made by any of the jurors to this diagram during the time they were deliberating on their verdict, and it is charged that the jury thus- received testimony on a material matter outside of the court and not on viewing the premises.

We think any juror had a right…