Bemmerly

— The defendant was convicted of murder in the second degree, and from the judgment upon such conviction and an order denying a new trial he has appealed.

1. After the jurors had been impaneled and sworn to try the cause, the court, upon its own motion, ordered them into the custody of the sheriff during the progress of the trial, and instructed the sheriff to keep them together, and not to speak to any one or permit any other person to speak to them or in their presence about the case; and also instructed them not to drink any intoxicating liquors during the progress of the trial.

One of the grounds urged for a new trial and upon the appeal is that before the final submission of the cause certain of the jurors separated from the others, and from the officer who had them in charge, and that certain of the jurors did before the final submission of the case to them drink intoxicating liquors.

It appears that after an adjournment upon one of the days while the cause was on trial, certain of the jurors, while upon the street in company with the sheriff, joined a crowd of people who Avere listening to the utterances of a street fakir, and tvere for a few minutes out of the sight or…