Appeal from the Seventh Judicial District.

■The defendant was indicted under the name of James B. Boggs for the crime of murder. The verdict of the jury who tried the case was as follows: “ We, the jury, do find the defendant J. M. Boggs guilty of manslaughter. D. D. Hemmenway, Foreman.”

Defendant moved for a new trial on the ground of the error in the name of the defendant in the verdict, and also on the ground of misconduct in the jury, and the officer having the jury in charge after the case was submitted. In support of the motion, defendant presented several affidavits, from which it appeared that after the jury had retired to deliberate upon the case, they returned into Court and stated that they differed as to the testimony of two witnesses for the prosecution, (naming them) and thereupon the Judge read to the jury from a memorandum of the testimony, taken by a person who was not an officer of the Court, or sworn to take the testimony, the whole of the testimony of the two witnesses mentioned; that in reading this testimony, the Judge made a mistake as to the statement of the position of defendant’s face at a point in the difficulty, near the time of the killing, the passage in the memorandum being “ Boggs’ face was nearly south; the door from him north-east nearly; my face north,” and the Judge’s reading being “ Boggs’ face was nearly north,” etc.

This position of defendant’s face was referred to in the testimony of one only of the witnesses whose evidence the jury desired to have stated. Other affidavits showed that while the jury were deliberating upon their verdict, the deputy Sheriff, who had charge of them, absented himself from the immediate vicinity of the jury room, and that during his absence some persons on the outside spoke to the jurors within, and some of the jurors spoke to two persons without; and also that two of the jurors left the jury room for a few minutes in charge of the deputy Sheriff; and also that when the jury had agreed upon their verdict, they were conducted into the Court room, the Court being at recess, and while waiting for the Judge, who was called by the officer, they were left in the Court room in the presence of a number of spectators, the officer who had them in charge being at the time outside of the Court room door.

The motion for new trial was overruled, and defendant sentenced to imprisonment for four years and six months. From this judgment, and from the order overruling the motion for new trial, defendant appeals.