Coyne

Defendant was convicted of a felony, and prosecutes this appeal from the judgment and order denying a motion for a new trial.

1. The jury were selected to try the defendant at the *297 morning session of court, and an adjournment was then taken until 2 o’clock p. m. of the same day, at which, time the introduction of evidence was begun. During the time of adjournment the jurors were not in the custody of the officer, neither had they been admonished by the court upon their duty, as demanded by section 3122 of the Penal Code. Complaint is now made that the course practiced at the trial constituted substantial and material error. The fact that the jurors separated during this period of time furnishes no ground for complaint; for section 1121 of the Penal Code leaves that matter to the discretion of the court. But a failure of the court to admonish the jurors as to their duty during the hours of separation is certainly an objectionable practice, and not countenanced by the statute. It seems that such omission upon the part of the court occurred but once during the progress of the trial, and at such time the introduction of evidence had not commenced. In the trial of criminal casés…