The defendants, John Steven O'Connor and John Jensen, were jointly charged with breaking and. entering with intent to commit larceny (SDCL 22-32-9). A motion of defendant O'Connor for a separate trial was granted. From judgment of conviction based on a jury verdict, he appeals.
Sufficiency of the evidence to sustain conviction is not questioned. Appellant claims reversible error in that (1) a mistrial should have been granted on the ground that the jury improperly separated and that (2) an examination of a witness for defendant by the court deprived him of a fair trial.
It appears from the evidence introduced on motion for mistrial that during the noon hour after the case had been submitted the jury was taken to a cafeteria and returned to the courthouse in three automobiles as a part of a convoy. There were no occupants in the automobiles other than the jurors and two bailiffs. They had their lunch in a room with no other persons present. The jurors did not come in contact with third persons.
The authorities cited by appellant do not sustain the claim of improper examination of a witness by the court. The examination was fairly and impartially conducted.
A careful consideration of the record before us and the contentions of appellant fail .to disclose any prejudicial error. The judgment appealed from .is, therefore, affirmed.