The plaintiff in error, Nicholson, was tried in the District Court of Weston County upon an information charging him with murder in the first degree; was found guilty of manslaughter .and sentenced to a term, in the penitentiary. From that judgment he brings the case here on error.
It appears from the record that on September 5, 1908, the County Attorney of said county filed an information in said court charging the plaintiff in error (who will be hereinafter called defendant) with the crime of murder in the first degree by killing and murdering one Rudolph W. Fur-rer on the 26th day of February, 1908. On September 7, 1908, the same being the first day of the term, the defendant was arraigned on said information and filed a plea in abatement thereto on the ground that the offense therein charged is alleged to have been committed on February 26, 1908, and more than thirty days prior to the first day of the September, 1908, term of the court, and that he had not been given a preliminary examination on said charge and had not waived the same. On the same day the prosecutor filed a *308.general demurrer to said plea, which demurrer was sustained by the court, whereupon the defendant on said day entered ¿his plea of not guilty. The ruling of the court in sustaining the demurrer to the plea in abatement is assigned as error. The statute provides that an information may be filed without a preliminary examination whenever an offense shall be charged against any person at any time within thirty •days immediately preceding the first day of a regular term of court of the county wherein such offense is charged to have been committed. (Sec. 5273, R. S. 1899.) Counsel for defendant properly concedes in his brief “that the filing ■of the information constitutes the charge where there has been no prior proceedings,” and “that the thirty days are to be computed from the date of preferring the charge, not from the date of the commission of the offense.” The plea in abatement in this case contains no statement or reference to any prior proceedings. It is argued here that another ■information charging the same offense against the defendant was filed in said court March 2, 1908; that he was .arraigned on that information the next day and entered a plea of not guilty thereto; that the case was set for trial May 25', 1908, and was afterwards by agreement of plaintiff and defendant continued to the September term of the •court. But the first reference we find in the record to such proceedings is in the motion for a new trial in this case, ■and is followed by a statement to the same effect in the bill of exceptions. The question, if meritorious, was not presented by the plea in abatement; and the courts do not take judicial notice of thqir records and proceedings in ■other causes. (Demars v. Hickey, 13 Wyo. 371.) On the face of the record the court did not err in sustaining the •demurrer to the plea in abatement. The objection that defendant had not been given a preliminary examination on the ground of prior proceedings against him for the same •offense, if good, came too late. Such objection is waived unless interposed by motion to quash or plea in abatement before pleading to the merits. (McGinnis v. State, 16 Wyo. *30972.) Assuming, but not holding, that the pendency of the first information sufficiently appears in the record, the situation on Sept. 7, the first day of the term, after the plea in abatement had been held insufficient and the defendant had entered his plea of not guilty, appears to be, that there were then pending against him two informations for the same offense. The statute, Sec. 5300, R. S. 1899, provides, “If there be at any time pending against the same defendant two or more indictments fo'r the same criminal act, the prosecuting attorney shall be required to elect upon which he shall proceed, and upon trial being had thereon the remaining indictment or indictments shall be quashed.” In this case there was no request for such election, and the trial was proceeded with on the second information without further objection.
At the close of the evidence for the state, the defendant requested the court to instruct the jury to return a verdict for the defendant on the ground of insufficiency of evidence to convict. This the court refused to do. This assignment ■of error will be considered later in connection with the obj ection that the verdict is not sustained by the evidence. ’ It is next urged that the court erred in instructing on the lower degrees of crime included in the information. But there was evidence from which the jury might reasonably conclude that the killing, if unlawful, was upon a sudden heat of passion rather than malicious or premeditated. On the evidence as it appears in the record it was not error to instruct on the lower degrees. The giving of certain instructions defining the different degrees of crime included in the information and explaining the distinction between those degrees is assigned as error, mainly on the ground that no instructions on the lower degrees were warranted by the evidence. The definitions given of the several degrees of crime included in the information are in the language of the statute; and the instructions explaining the distinctions between the several degrees correctly state the law, and are not seriously challenged on that ground.
*310The court instructed the jury “that the credibility of witnesses is a question exclusively for the jury to determine. In determining the weight to be given to the testimony of the several witnesses, the jury should take into consideration their interest in the result of the case, if any such is proved; their conduct and demeanor while testifying; then-apparent fairness or bias, if such appears; their opportunities for seeing or knowing the things about which they testify; the reasonableness or unreasonableness of the story told by them, and all the evidence and facts and circumstances proved tending to corroborate or contradict such witness if any such appears.”
The use of the words “story told” and “appears,” it is. argued, were misleading. But we think the jury could not have otherwise understood the words “story told,” as used in this instruction, than in the sense of the testimony given on the trial; and that the fairness or bias of a witness more often “appears” from his conduct on the stand and his. manner in testifying than from what he or other witnesses state in their testimony; and if either such fairness or bias of a witness “appears” to the jury, it is a circumstance to be considered in determining the weight to be given to. his testimony. The court instructed the jury “that with the punishment of this defendant in case of his conviction,, you have nothing whatever to do; so that in determining, the guilt or innocence of this defendant, you have no right to take into consideration what punishment he might or might not receive in the event of his conviction.” * * * We see no error in this instruction. The guilt or innocence of an accused does not depend upon the extent of the punishment fixed by the law; and the sole duty of the jury is to determine, from the evidence, the guilt or innocence of the defendant. Instruction No. 30, is objected to,, and is as follows: “It is the duty of each juryman, while the jury is deliberating upon their verdict, to give careful consideration to the views his fellow jurymen may have to present upon the testimony in the case. He should not *311shut his ears, and stubbornly stand upon the position he first takes, regardless of what may be said by the other jurymen. It should be the object of all of you to arrive at a common conclusion, and to that end you should deliberate together with calmness. It is your duty to agree upon a verdict if that is possible.” This. instruction was followed by No. 31, defining a reasonable doubt; and then by No. 32, which is as follows: “You are instructed that if any one of the jury, after having considered all the evidence in this case, and after having consulted with his fellow jurymen, should entertain a reasonable doubt of the defendant’s guilt, then the jury cannot find the defendant guilty.” We cannot perceive how No. 30, when considered in connection with No. 32, could prejudice the defendant. An instruction similar in effect was held not to be erroneous in Allen v. United States, 164 U. S. 492. Other instructions are criticised rather than contended to be erroneous and need not be referred to more fully. Taking the instructions as a whole, we think they presented the law of the case to the jury as favorably to the defendant as he was entitled to.
Objection is fcnade to the statement of counsel for the prosecution in stating the case to the jury and the evidence by which it expected to sustain it, to the effect that they would show by a doctor and others that one of the wounds ■of deceased could not have been made in the manner claimed by defendant. If that could be shown it was competent •and material; and if the prosecution failed to sustain the statement by evidence, it certainly did not prejudice the defendant.
Several rulings of the court as to the admissibility of evidence are assigned as error. We have examined the record in that respect and find nothing that appears to be preju^ dicial error. Most of the objections are to evidence tending to effect the credibility of witnesses, or only remotely bearing upon the issues; and even if some of- the rulings were erroneous as claimed, the evidence admitted or excluded *312was not of a character to warrant a reversal of the case on that account.
It is urged that a new trial should have been granted on the ground of surprise which ordinary prudence could not have guarded against. This surprise consists in .the failure of the state to produce at the trial a witness for whom a subpoena had been issued by the prosecution. It appears that the attorney for the defendant on August 22, 1908, inquired at the clerk’s office if a subpoena had been issued for one Schmidt and was informed that such subpoena had been issued and sent to the sheriff of Natrona County for service and that said sheriff had informed the clerk that he had located said witness and would serve the subpoena. If the defendant considered the testimony of this witness important in his defense he should have had him subpoenaed on his behalf and not have relied upon the subpoena issued on behalf of the state. In any event, no application for a continuance was made on account of his absence, and the objection came too late.
The motion for a new trial contains a charge of misconduct of the jury and the officer in charge of the same, which is supported by affidavits. Several affiants state in their affidavits that during the progress of the trial they saw one of the jurors separated from the balance of the jury and on the street unattended by an officer; and two affiants, state that at another time they saw another juror go, unattended, into a store and into a bank. One affiant states that the “jury were at different times during the progress of said trial permitted to separate and scatter around in and about said hotel at meal time, promiscuously, from the dining room, office, and in front of said hotel, where the prosecuting witness, and other witnesses for the state were stopping; and said jury were permitted to stop in the office of said hotel and to loiter about the same; and intermingle amongst the people and guests and witnesses for the state in said cause; affiant further says some of the witnesses for the state harbored a very bitter feeling against the defendant, *313and so publicly declared.” Another affiant states, in addition to seeing a juror going into the drug store, that he “saw the jury separated; a part of the said jury was on one side of the street, and a part of-the same on another side of the street in said town of Newcastle, in said county, and at said time saw the officer with said jury leave the same, out on the street, as aforesaid, and go into the First National bank; * * * that at said time people were standing about and passing and repassing the different members of said jury scattered about from one side of the 'street to the other, and intermingling with the same and circulating between and amongst said jurymen.” The juror who went into the drug store and bank made an affidavit in which he states “that with permission of the bailiff he did enter the First National bank building to visit the water closet, after which he immediately returned to the remainder of the jury which were waiting in the street outside; that also with the permission of the bailiff he entered the Wyoming Pharmacy, or Musser’s drug store, for the purpose of buying cigars, the bailiff remaining outside on the sidewalk, and at no time was the affiant out of sight of said bailiff.” The other juror stated to have been seen on the street unattended, states in an affidavit “that he did not absent himself from the body of said jury on the streets of Newcastle at any time during the progress of said trial, except that he went to the closet in the Antlers hotel, and that the balance of said jury was in the washroom of said hotel adjacent to said water closet.” Each of these two jurors also states that during such separations he did not discuss the case with anyone-and that he did not see anyone discuss the case with any member of the jury.
The statute provides “In the trial of capital cases the jury shall not be permitted to separate, after being sworn, until discharged by the court” (Sec. 5385, R. S. 1899), and by Sec. 3646, the officer having the jury in charge shall not suffer any communication to be made to them. In some states it is held that when a defendant shows a separation *314of the jury in violation of the statute he has made a sufficient prima facie showing to entitle him to a new trial, and to shift the burden onto the State of showing clearly and beyond reasonable doubt that no prejudice resulted from such separation; and that the uncorroborated affidavit of the juror is insufficient for that purpose (State v. West (Idaho), 81 Pac. 107), while in other states it is held that prejudice must affirmatively appear. Our opinion is that the reasonable and just rule lies between these extremes; and that when a defendant in a capital case has shown a separation of the jury, or an opportunity for other parties, and especially witnesses, to communicate with them in violation of the statute and it appears that the defendant was prejudiced, or that it does not appear that he was not prejudiced thereby, a new trial should be granted. The affidavits of the jurors are competent and admissible as tending to show what actually occurred and that no prejudice resulted from their conduct. Whether their uncorroborated evidence is sufficient to overcome the inference or presumption of prejudice arising from misconduct, we think, should'be determined from all the facts and circumstances of each case; and where it fairly and reasonably appears in a particular case that no prejudice actually resulted from such misconduct, a new trial should not be granted on that grqund. In the case at bar we think the conduct of the two jurors who separated themselves from the body of the jury is sufficiently explained to warrant the conclusion that no1 prejudice resulted to- the defendant on that account. But the uncontra-dicted statements contained in the affidavits that the jury was permitted to loiter about the hotel office and mingle amongst the witnesses for the State and others, and that they were scattered about the street and that others mingled with them, and that the officer left them unattended on the street and went into the bank, we think, afforded such opportunity for communication with them as, in the absence of a satisfactory showing to the contrary, to raise a presumption of prejudice. It appears that there was but one officer in charge of the jury while absent from the jury room at *315meals; and it is apparent that if it became necessary on such occasions for a juror to separate from his fellows for a proper purpose, the officer could not be present with both. That some of the witnesses for the State were hostile to the defendant appears not only by affidavit but from the evidence. The provisions of the statute as to the care and conduct of the jury in capital cases are mandatory and for the purpose of securing a fair and impartial trial, and a. failure to substantially comply with those requirements will entitle a defendant to a new trial, unless it' is made reasonably to appear that prejudice did not result therefrom. The mere temporary separation of a juror for a necessary purpose, and who is attended by a proper officer, would not raise a presumption of prejudice. An examination of the record in this case convinces us that the requirements of the statute have been so far departed from, under all of the circumstances, as to entitle the defendant to a new trial.
The only other question requiring consideration is the sufficiency of the evidence. The defendant attempted to justify the homicide on the ground of self-defense, and, there being no witnesses to the homicide, the State relied upon circumstantial evidence to overcome the claim of the defendant. The evidence was sufficient to require the case to go to the jury, and the court did not err in refusing to direct a verdict of acquittal., The sufficiency of the evidence,' whatever it may be upon another trial, will be a matter to be determined at that time.
For the error in refusing to grant a new trial on the ground of misconduct of the jury the judgment of the District Court is reversed and the case remanded for a new trial.
Reversed and remanded.
Potter, C. T., and Scott, concur.