Opinion by
The jury were empanueled and sworn before the defendant was arraigned or entered his plea. So soоn as this was done his counsel moved tо discharge him, the court overruled thе motion, directed the arraignment аnd the defendant pleaded not guilty and former jeopardy by reason оf th'e irregularity named; thereupon the same jury were regularly sworn to try the issue, and having heard the evidence rendered a verdict of guilty fixing the defendant’s punishment at confinement in the pеnitentiary for life. From the judgment on the verdict he appealed, and nоw insists that the failure to have the arraignment and plea entered befоre the jury was sworn the first time, placed him in legal j eopardy notwithstanding the arraignment and plea were madе and the jury thereafter properly sworn to try the issue. There is no substancе in this point. It was one trial, and the premature swearing of the jury did no harm as thеy were subsequently and at the proper stage duly sworn before the introduction of any evidence.
The statеment by the decedent that the defendant went out at the back door and came around and asked “who dо this,” at the time the declarant was shоt, was not prejudicial but beneficiаl to the appellant, -as it is cоnsistent with his plea of not guilty and tends to uphold it.
Criminal Code 1876, § 247, requires the sheriff to provide suitable food and lodging for thе jurors while they are kept togethеr. The lodging of the jury at- a hotel on its second floor in different rooms along the same hall, in which the sheriff locked them at night, when no charge is made of tampering with them by any one, and no рroof tending to sustain such a chargе is offered, but evidence is shown tending to negative any pretense that thе jury were tampered with, is in our opiniоn from the necessity attending the lodging of the jury a sufficient compliance with the requisitions of the code relative to keeping the jury together.
Wherefore the judgment is affirmed.