(dissenting).—I am unable to agree with the majority of the court in the reversal of the judgment. The record shows that the separation of the jury during the progress of thé cause was but for a few minutes, and that, at the time such separation was allowed by the court, the defendant and his attorney were present, and made no objection whatever to such separation. Under these circumstances, I think it should be held that they had consented thereto. I see no reason whatever for holding that a person charged with crime should not be allowed to waive any of his rights the same as he could in a civil action. If he can waive all of his rights to a trial, and be adjudged guilty upon his own plea to that effect (as he can in the case of all crimes not capital), I see no reason whatever for holding that he cannot waive any of the formalities to which he might be entitled as'a part of his trial. If he can thus waive his rights, he should be held to have done so when his conduct is such that it appears clearly that he *776had knowledge that such formality was to be dispensed with, and made no objection thereto. .In civil actions it is universally held that if a jury separate, even after a case has been submitted to them, the verdict will not be set aside without proof that such separation has been prejudicial to the rights of the party against whom the verdict was rendered. There is no reason why the same rule should not obtain in the case of one convicted of a crime. In a capital case the defendant cannot waive his right to a trial, even by a plea of guilty; and it may well be held in that class of cases that he cannot waive any formality which is at all essential to a full and fair trial. It seems to me that in all other criminal cases it is something like a travesty upon justice to hold that because the jury, for ever so brief a time, left their seats without being kept together by an officer, a verdict thereafter rendered by them should, on motion of the defendant, be vacated, even although, at the time the jury thus acted, he was present in court with his counsel and saw them thus behaving, and made no protest or objection whatever. So far as I know, the rule is universal that in criminal, as well as in civil, cases, the defendant, if aggrieved by a ruling or decision of the court, must preserve his exception thereto, in order that he may get relief in this court against such ruling, if erroneous. The same principle, applied to the case at bar, will, I think, preclude the defendant from getting relief here against something that was improperly done during the progress of the trial, with his full knowledge; for the reason that it was his duty, if he desired to take advantage of such wrongful conduct, to preserve an exception thereto. I think the judgment should be affirmed.