ment, with a copy of the indictment and a list of the witnesses and jurors." When a prisoner or defendant in an indictment, is called to plead, he may, under this provision of the statute, demand a copy of the indictment, etc., before he can be compelled to plead, and if the court should refuse this request, upon preserving the fact, it would undoubtedly be error. If, however, the prisoner plead and go to trial without objection, he waives his right. In this case, however, this assignment is not sustained by the record. The record distinctly states, that the defendants were furnished with a copy of the indictment, and list of the jurors and witnesses, before the first trial, and it was not incumbent on the prosecution, to furnish them again at the subsequent trials. All that the party would have been entitled to demand on the trial, at which his conviction took place, was a panel of the jury. Had the prisoner objected to being tried until the panel was furnished him, and the court had refused it, such refusal would have been error.

The third and fourth assignments of error are also untenable. At the special September term no action was had that was prejudicial to the prisoner. Its appointment, therefore, did not injure him. The continuance of the case from that term over a regular term, was on the affidavit of the prisoner and at his request, and must be presumed was for his benefit. He, therefore, can not complain.

The fifth assignment is based upon the supposition that everything done by the court during the progress of the trial, should be stated in the record. This, as we have seen, is not necessary. Nothing is more important in the prosecution of a criminal case, than that the witnesses against the prisoner should appear in open court, be sworn in the presence of the prisoner, and be subjected to his cross-examination. Yet these facts are never stated on the record. It never appears from the record that any witnesses were sworn at all. The law presumes, until the contrary appears, that the court performed its duty. It then by no means follows, because the record is silent as to the disposition of the jury, that the judge neglected so important a duty as to keep that jury, charged with the life of the prisoner, from all extraneous influences. The law in capital cases undoubtedly is, that from the commencement of the trial until the rendition of the verdict, the jury, during all adjournments of the courts, should be placed in charge of an officer, unless it is otherwise ordered by the court, by the consent of the accused and the attorney for the people.

In civil cases, and in cases of misdemeanor, the rule is different, and the court may exercise a discretion as to the proper disposition of the jury during the progress of the trial. In this case, if the jury did separate without the consent of the prisoner, it was an irregularity, and the court below would, upon the fact being established, have been bound to set aside the verdict and grant a new trial, unless such separation was the result of misapprehension, accident, or mistake on the part of the jury, and under circumstances to show that such separation could by no possibility have resulted to the prejudice of the prisoner. The prisoner was in court with his counsel, and if the court had permitted the jury to disperse without the consent of the prisoner, such fact being established by a bill of exceptions, would have been sufficient ground to reverse the judgment. As it is, this court is bound to infer, either that the court directed the jury to be kept together, or, if they dispersed, it was by consent.

The sixth assignment of error is in character similar to the fifth. It was not necessary that the record should show that an officer was sworn to take charge of the jury. It was the duty of the court to have sent a sworn officer with the jury, and if this duty were neglected, such fact should appear from a bill of exceptions.

The seventh assignment of error, is "that the oaths administered to the jurors and witnesses, were not administered according to law." The statute relative to oaths declares "that whenever any person shall be required to take an oath, on any lawful occasion, and such person shall declare that he has conscientious scruples about the present mode of administering oaths, by laying his hand on and kissing the gospels, it shall be lawful for any person empowered to administer the oath, to administer it in the following form, to wit: the person swearing, shall, with his hand uplifted, swear by the ever-living God, and shall not be compelled to lay the hand on or kiss the gospels. And oaths so administered, shall be equally effectual, and shall subject such person to the like pains and penalties for willful and corrupt perjury, as oaths administered in the usual form." The common law recognizes any mode of swearing a witness that the witness believes to be binding on his conscience. The law, in requiring a witness to be sworn, has a two-fold object in view. The first and principal design is by affecting the conscience of the witness to compel him to speak the truth. And secondly, if he willfully falsifies the truth, that he may be punished for his perjury. Both of these objects have been secured

by the oaths administered to the jurors and witnesses. The question whether an oath, administered in the manner specified in the bill of exceptions taken in this case, was legal, arose in the cause of Gill v. Caldwell, Breese, 27. In that case, this court held, "that the man who swears by an uplifted hand, elects to do so, and the ceremony of refusing to swear upon the testament, in the usual form, is perfectly idle." The court also directed in that case that the oath administered by holding up the hand, although no testament was furnished and the witness did not declare that he had conscientious scruples against being sworn on the gospels, was valid and legal. But admitting that it was irregular to swear the jury and witnesses in the mode stated in the bill of exceptions, still the swearing took place in the presence of the prisoner and his counsel, and they should have objected to it at the time. Having stood by, making no objection, it was too late to object after the verdict.

The eighth error is, that the court erred in overruling the defendant's motion in arrest of judgment and for a new trial. The question arising under the motion in arrest of judgment, is disposed of under the third and fourth assignments of error, and the question, whether the court below ought to have granted a new trial, is disposed of under the seventh assignment.

The ninth assignment of error is the general one, that the court erred in rendering a judgment against the defendant. This assignment requires no remark, other than, if the special errors assigned do not show sufficient reasons for the reversal of the judgment, the judgment below is necessarily affirmed. Upon the whole, we are of opinion that it does not appear from the record, in this case, that any such errors exist in it as will justify this court in reversing the judgment below. In arriving at this conclusion, we are aware that there is a decision in Jones v. State, 2 Blackf. 478, that conflicts with some of the views that have been expressed in this opinion. In that case, the supreme court of Indiana held, that where "the record stated that the court adjourned from Wednesday until Thursday, but the record was silent as to what was done with the jury," that this omission was error, and the court refused to presume, that the jury were ordered in charge of an officer. We do not disagree with the supreme court of Indiana, that it was necessary in the absence of consent on the part of the prisoner, that the jury should have been kept together in the charge of an officer of the court; but we believe, that as the prisoner was in court, in person and by his counsel, that it was his duty to object to the dis

persion of the jury, if indeed they did disperse; and that in the absence of all proof to the contrary, we will presume that the court below performed so obvious a duty. A prisoner on trial, under our laws, has no right to stand by and suffer irregular. proceedings to take place, and then ask to have the proceedings reversed on error, on account of such irregularities. The law, by furnishing him with counsel to defend him, has placed him on the same platform with all other defendants, and if he neglect in proper time to insist on his rights, he waives them.

In most of the other American cases referred to on the argument, the application to correct the irregularities complained of, was made to the appropriate court for a new trial, and were not cases in error; consequently, the positions we have laid down in this opinion do not necessarily conflict with them.

The judgment below is affirmed with costs, and the court order that the prisoner shall be executed on the thirty-first day of December, 1846, between the hours of ten and four of that day, and that this sentence shall be executed by the sheriff of Rock Island county. There are some peculiar circumstances in this case which induce the court to postpone the execution to so distant a period.

Judgment affirmed.

YOUNG, J., took no part.

PARTY CAN NOT COMPLAIN OF ERROR NOT PREJUDICIAL TO HIM: See Armstrong v. Prewitt, 32 Am. Dec. 338; Tucker v. Baldwin, 33 Id. 384; Frankfort Bridge Co. v. Williams, 35 Id. 155; McGowen v. West, 38 Id. 468, and note.

JURY MUST BE KEPT TOGETHER, WHEN, AND CONSEQUENCES OF UNAUTHORIZED SEPARATION.-The ancient rule of the English law was that in all cases, civil as well as criminal, a jury once sworn and charged with a cause could not be discharged or permitted to separate before they had agreed upon their verdict: State v. Miller, 1 Dev. & B. 508, per Ruffin, C. J.; Thompson & Merriam on Juries, sec. 310. During the trial, which, in primitive times, occupied but a single day, the jurors were kept together at the bar of the court, and on the submission of the cause they were placed in charge of a sworn officer, and kept without separation, or communication with other persons, and without food, drink, fire, or light, except by license of the court. They were in fact prisoners of the court: Banister, J., in Bishop of N. v. Earl of Kent, 14 Hen. VII., c. 29. The rule as to the confinement of juries after retiring from the bar, as originally maintained and enforced in the English courts, is thus stated in Co. Lit. 227 b: "By the law of England a jury, after their evidence given upon the issue, ought to be kept together in some convenient place, without meat or drink, fire or candle, which some books call an imprisonment, and without speech with any, unless it be the bailiff, and with him only if they be agreed. After they be agreed they may, in causes between party and party, give a verdict, and if the court be risen,

give a privy verdict before any of the judges of the court, and then they may eat and drink, and the next morning in open court they may either affirm or alter their privy verdict, and that which is given in court shall stand. But in criminal cases of life or member, the jury can give no privy verdict, but they must give it openly in court." The object of this rigorous seclusion of juries from intercourse with the outer world, and of the interdiction of social comforts from the jury-room, was apparently two-fold. One purpose was to prevent the possible contamination of verdicts by extraneous and improper influences. Another purpose was, however, as we gather from the hardships and inconveniences to which jurors were subjected, to coerce them into agreement. With a strange inconsistency, while the courts then, as now, held that duress vitiated all contracts, they regarded it as a fit instrument for securing a final determination by a jury of the most sacred rights and the most fearful responsibilities. An agreement for the payment of the most trivial sum, entered into by compulsion, could not be enforced, but a jury could be compelled by imprisonment and starvation to agree upon a verdict involving the life or death of a fellow-man. Thus duress, carefully excluded from all other dealings and transactions of men, was made the presiding genius of the jury-room. In modern times, however, a more enlightened notion prevails, and although there are still some vestiges of the doctrine that jurors are compelled to agree upon a verdict, the prominent object of the rules respecting the seclusion of juries is to secure them from improper influences.

Therefore, as a general rule, the separation of a jury after it has been impaneled is not to be deemed to vitiate its subsequent verdict, except where by reason of such separation some of the jurors have been actually or presumptively exposed to such improper influences. In some of the states, as we shall presently see, it is held that a separation of the jury in certain classes of cases, at a certain stage of the proceedings, affords either prima facie or conclusive evidence that the jurors have held unlawful communications with persons not of the jury, or have been otherwise tampered with, while in other states there must be some evidence of improper influence in addition to the mere fact of separation, to warrant the setting aside of the verdict. A brief examination of the question as to when the unauthorized separation of a jury will be deemed ground for a new trial, will be found in the note to Hilton v. Southwick, 35 Am. Dec. 258, where many cases on this point are collected. In this note it is proposed to discuss the subject somewhat more fully in its application to different classes of cases, civil and criminal.

RULE AS TO SEPARATION OF JURY IN CIVIL CASES.-1. During Trial: Owing to the great length of modern trials, it has come to be the general rule in this country to permit the jury in civil cases to separate, after proper admonition, during the recesses and adjournments of the court, before the cause is finally submitted: Proffatt on Jury Trial, sec. 394; Whart. Crim. Pr. and Pl., 8th ed., sec. 719; Thomp. & M. on Juries, sec. 314. And where in such a case the jury is allowed to separate during adjournments, without any motion or cause shown against it, there is no error: Stancell v. Kenan, 33 Ga. 56. And where a juror during the trial leaves the box, without permission, for a short time, if no testimony is received in his absence and if no communication is shown to have been had with any person not of the jury during such absence, prejudicial to the losing party, the verdict is not vitiated and will not be disturbed: Ex parte Hill, 3 Cow. 355; Newell v. Ayer, 32 Me. 334. Any unauthorized voluntary separation of a juror from his fellows is an offense for which the juror may be punished: Crane v. Sayre, 6 N. J. L. (1 Halst.) 110; Ex parte Hill, supra. But a verdict is never set aside for the mere mis