1. One of the grounds of defendant’s motion for a new trial is that, after his cause had been submitted to the jury, and pending its consideration by the jury, one of the jurors separated from the other members of the body, and remained separate from them about twelve hours. It appears from affidavits filed, and read in opposition to this ground of the motion, that while the jury was deliberating upon the case one of the members thereof became quite sick, and it became *368necessary to give him attention, and he was separated from the other jurors during the night, but was all the time during such separation in charge of a deputy sheriff, and was not spoken to by any one about the case, nor did he speak to any one about the case, nor was the case spoken about in his hearing during said time. It is shown that such separation could not probably or reasonably have occasioned any injustice to the defendant.
The mere separation of a jury is not cause for a new trial." In addition to the separation in contravention of the law (Code Crim. Proc., Art. 687), it must be further made to appear that by reason of such separation probable injustice to the accused ha s been occasioned. (Code Crim. Proc., Art. 777; Davis v. The State, 3 Texas Ct. App., 91; Cox v. The State, 7 Texas Ct. App., 1; West v. The State, 7 Texas Ct. App., 150; Russell v. The State, 11 Texas Ct. App., 288.) In this case the separation of the jury was not of 'that character, or accompanied by any of the circumstances which constitute a ground for a new trial.
■ 3. Ho errors in the charge of the court, or other errors in the proceedings in the case, are complained of by the defendant. We have, however, carefully .considered the charge of the court, statement of facts, and all other parts of the record, and we have found no error of which the defendant can be heard to complain. His conviction, as shown by the record, has been obtained upon a fair and impartial trial, conducted in all respects in strict accordance with the forms of law.
3. We find one error in the charge of the court which- we think it advisable to call attention to. The learned judge states in his charge that “the law of principals does not apply to cases of manslaughter.M This was doubtless a mere clerical mistake in the charge. There is no such exception made in the provisions of our Code. (Penal Code, Arts. 74 to 78.) There can be no accomplice to manslaughter, and it was this rule of the law, perhaps, that the learned judge had in his mind when he penned the instruction quoted. (Penal Code, Art. 85.) An accomplice under our Code is the same as an accessory before the "fact at common law. (Penal Code, Art. 79; 3 Greenl. Ev., sec. 43; 1 Bish. Cr. Law, sec. 673.) And at common law there could be no accessory béfore the fact to manslaughter, because manslaughter is an offense which is considered in law sudden and unpremeditated. (1 Hale P,_ C., 613-615; 4 Black. Com., 35; 1 Bish. Cr. Law, sec. 678,) But at common law there might be a principal in the second degree to manslaughter, such principal being one *369who did not with his own hand commit the act, but was present aiding and abetting it (3 Greenl. Ev., sec. 40; 1 Bish. Cr. Law, sec. 678), and in our opinion such is the law under our Code. (McMahon v. The State, ante 357.)
But this error in the charge is immaterial in this case, because it was favorable to the defendant, and he could not be heard to complain of it, nor, in fact, has he complained of it. We have noticed this portion of the charge for the sole purpose of calling attention to what we believe to be the law upon a questior which has not before been decided by this court.
Finding no error in the record of which the defendant car complain, the judgment is affirmed.
Affirmed
Opinion delivered May 31, 1884.