J. concurring.
The defendant was convicted of the crime of murder in the first degree. His counsel assigned several errors, which we shall consider in their order.
1. The first is, that three of the trial jurors separated from their fellows after the jury had retired, and before the return of their verdict. This assignment seems to rest on the fact that these jurors retired for a few moments to a privy, and the Under Sheriff who accompanied them testifies, that during their absence from the jury room, they held no correspondence with any one, nor with each other. The case of the People v. Backus (5 Cal. 275) is relied on ; but that case—which goes to the verge of the true rule, if not beyond—does not support the assignment; for the Court say, the correct rule is to grant a new trial on account of the separation, if it were such as that the jury might have been improperly influenced. Here the facts show that the jurors were in the custody of the officer, and not only is there no probability, from the circumstances, of any improper interference, but express proof, uncontradicted, that there was none. (See People v. Lee, 17 Cal. 78.)
2. It is assigned that the jury should not have been permitted to view the scene of the alleged murder, except in the presence of the prisoner, this view being a part of the trial, in the theory of the ‘ counsel, and the prisoner required to be present during the entire progress of it; and,
3. That the jury were permitted to see the buggy, as to which testimony was given. We see nothing in these two points requiring a detailed notice. The Court had the discretion to permit the jury to view these physical objects; and this was neither in contemplation of the act or otherwise any part of the trial. It was rather a suspension of the trial to enable the jury to view the ground, etc., *446that they might better understand the testimony. We do not see what good the presence of the prisoner would do, as he could neither ask nor answer questions, nor in any way interfere with the acts, observations or conclusions of the jury. If he had desired to see the ground that he might be assisted in his defense by the knowledge thus obtained, possibly the Court would have granted him the privilege ; but the fact that the jury went upon the ground without being accompanied by him is no good reason for setting aside the verdict, especially as he neither made objection nor asked permission to accompany them at the time.
4. It is next urged, that the Court erred in telling the jury orally to return when they brought in a general verdict of guilty—as it is said—and “ to find ” in what degree “ or the degree.” It is said that this direction was a charge, and ought to have been in writing. We think not. Their answer was not a finding, but a failure to find. The duty of the jury remained undischarged. They were still under the control of the Court. The Court did not direct them as to the law of the case ; it only told them that they must act— that they, in other words, must find a verdict on the issue, which was, whether the defendant was guilty, and if guilty, in what degree. This was no more a charge than if the Court, immediately after the argument, had told them to retire and consider of their verdict.
5. It was not error for the Court to permit a witness to be sworn for the prosecution, because his name was not marked on the indictment. It often happens that the necessity for introducing particular witnesses arises on the trial; and justice would be greatly impeded if the rule invoked were affirmed, while no corresponding advantages would accrue from it.
6. The last objection is, that the Judge erred in sundry particulars in assuming the guilt of the prisoner, or assuming for proven certain disputed points of fact. There is no statement of facts; and it would be difficult for us to say that the Court erred in its assumption; for all presumptions are in favor of the correctness of the acts and rulings of the Judge. We only interfere to correct an erroneous instruction on appeal where the facts are not stated, when under no imaginable state of facts could the ruling of the *447Judge be maintained. But apart from this objection, we see nothing in the charge in the respects criticised which sustains the assignment.
Judgment affirmed, and the Court will fix a time for the execution of the sentence.