115 Wash. 21 | Wash. | 1921
The defendant was convicted of the crime of sodomy and has appealed to this court. Immediately upon the jury being sworn to try the case and before the taking of any testimony, the jury was permitted to separate during a recess without the consent of the appellant. The record shows the members of the jury were allowed to commingle with the audience and that they retired from the court room. Prior to the taking of any testimony, counsel for the appellant called the court’s attention to the separation of the jury without the consent of the defendant, and objected to further proceeding with the trial. The objection was overruled and the trial proceeded.
Rem. Code, § 2159, provides:
“Juries in criminal cases shall not he allowed to separate, except by consent of the defendant and the prosecuting attorney, hut shall he kept together, without meat or drink, unless otherwise ordered by the court, to he furnished at the expense of the county.”
We have held in the cases of State v. Place, 5 Wash. 773, 32 Pac. 736; State v. Strodemier, 41 Wash. 159, 83
Parker, C. J., Mount, Main, and Tolman, JJ., concur.