Defendant was convicted in tbe district court for Lincoln county of murder in tbe first degree. Tbe jury fixed tbe penalty at death, and he prosecuted error to this court. He is charged with having killed Vernon Connett on August 2, 1914. Connett was a young farmer whose home was at Bird City, Kansas. Mrs, Connett had not been in robust health, and her physician advised that she live in the open air. Accordingly the Connett family left their home in Kansas and drove across the country, living in a covered wagon, and intending to visit some relatives in this state. They arrived at North Platte July 31, 1914, where, by chance, they met defendant. A friendship appears to have rapidly developed between the two men. Defendant’s mother and her husband, Charles Clayton, were employees on a ranch *201situated about five miles northwest of the city of North Platte. Defendant, together with Connett and his wife and baby, drove to this ranch, arriving about 5 o’clock in the evening. They camped there for the night, and the next day Connett determined to seek work in the neighborhood and to send his wife and baby to their people by rail. Defendant and the Connett family drove to the city of North Platte, where Mrs. Connett and the baby took the train for Mason City. Defendant and Connett then returned to the ranch. They remained there that night and until some time the following afternoon. So far there seems "to be no conflict in the evidence. Connett was killed, and this defendant disposed of Connett’s property, and did other things and conducted himself generally so as to leave no doubt that he had a part in the tragedy that resulted in the death of Connett. Defendant was about 22 years of age at the time of the alleged crime. He had been convicted of robbery and sentenced to an indeterminate term in the penitentiary, but prior to the date charged in the information, had been released from the penitentiary on parole. Clayton was also a paroled convict, and th.e defendant’s mother had been living with Clayton for several years as his wife. Clayton and his wife were at first arrested for the crime, but, so far as the record shows, they were not prosecuted. The questions to be tried were whether the crime committed was premeditated murder to obtain the property that Connett had with him and calling for the death penalty, or whether the killing was done in a quarrel and the appropriation of Connett’s property was an after-thought so that the crime was of a less degree. Was the crime committed by this defendant alone, or was the fatal blow struck by Clayton, making him the principal and his wife and the defendant accessories thereto? According to the testimony for the state, defendant and Connett drove away from this ranch about 4' o’clock Sunday afternoon, saying that they were going, to the neighborhood of *202Hershey, where they expected to find work, and Connett was never again seen alive.
The evidence, if true, would relieve Mr. and Mrs. Clayton from suspicion. The defendant’s testimony was that while they were at the ranch an altercation arose between himself and Connett which resulted in Con-nett’s knocking defendant down, and while Connett was continuing his attack and was leaning over defendant attempting to choke him, upon defendant’s cries for help, Clayton rushed to the scene and struck Connett several blows upon the head which caused his death. He says that Clayton first removed the body, and afterAvards he and Clayton planned the disposition of the body and the property of Connett. Defendant disposed of the property, and says that he divided the proceeds with Clayton. He is to some extent corroborated in this. It is shown that he received gold coin for some of Con-nett’s property. Clayton testified that he did not receive any of the property or the proceeds thereof, and also testified that he had not had any gold coin from any source. There was some evidence that soon after Connett’s disappearance Clayton paid a $5 gold coin for liquor at a saloon.
When such a crime as this is committed, so dangerous to the safety of society, it is of the highest importance to ascertain the truth of the case, to establish the real character of the crime, and fix the responsibility upon the guilty party. Unfortunately for the interests of humanity it is not always possible to do this. The greatest criminal is often able to divert attention from himself, and to turn the vengeance of the public against one who may not be free from guilt, but who is lessi guilty than himself. It too often happens that the one .least guilty, or perhaps even entirely innocent of the crime, is made to bear the punishment therefor, and A> satisfy the sense of justice of the community, too readily convinced in the eager and laudable desire to see the crime properly punished. For these reasons, the *203Constitution and laws have provided certain regulations for the trial of persons charged with crime intended to prevent the terrible mistake of allowing the guilty to escape punishment through a mistaken belief on the part of the public and the authorities that justice had been done. According to the defendant’s testimony, there were four living witnesses to the crime besides the defendant himself, Mr. Clayton, his ’ wife, Mrs. Clayton’s, little girl, and a boy about 17 years old named Jones. Clayton and the boy testified- to the essential facts relied upon as fastening the guilt upon the defendant. Mrs. Clayton was called only in rebuttal to explain an incident which it was claimed indicated her participation m the crime. The little girl was offered as a witness by the defendant, but was excluded by the court. And so we do not have the evidence of either Mrs. Clayton or the little girl, both of whom were present and witnessed the crime, according to the defendant’s version.
The court removed the trial from the court-room to the theater, and stated as a reason therefor: “By reason of the insufficiency of the court-room to seat and accommodate the people applying for admission, and also by reason of there being some question as to the safety of the building crowded to its full capacity as it is, it is by the court ordered that the further trial of this cause be had at the Keith Theater, and thereupon the court was adjourned to Keith Theater, where trial proceeded.” The stage was occupied by court, counsel, jury, witnesses, and officers connected with the trial. The theater proper was crowded with curious spectators. Before the trial was completed -it was returned to the court-room and concluded there. At the adjournment of court on one occasion the bailiff announced from the stage: “The regular show will be tomorrow; matinee in the afternoon and another performance at 8:30. Court is now adjourned until 7:30.” The court manifested no disapproval-' of this announcement. The defendant now insists that such proceedings were pre*204judicial to the calm consideration of his cause to which he was entitled.
The law requires that trials shall be public, but this requirement is satisfied by admitting those who could conveniently be accommodated in the court-room where the law requires such trials to be held (Rev. St. 1913, sec. 1162), without interrupting the calm and orderly course of justice. This young man was already a convict, Did the jury infer from these, arid other'similar transactions, that it was immaterial in what manner the defendant was tried; that it was not necessary to take great pains in weighing the evidence against a convict who by his own admissions had violated the law? It is not clear that the defendant was not prejudiced by these proceedings.
The defendant demanded that the state’s witnesses be separated so as not to hear each other’s testimony. In some jurisdictions this.) is a matter of right. 1 Green-leaf, Evidence (16th ed.) sec. 432, says: “This order, upon the. motion or suggestions, of either party, is rarely withheld.” Binfielcl v. State, 15 Neb. 484. In our state it has been considered to rest in the discretion of the trial court. This court has said that the practice of so separating the witnesses “is a good one, as it tends to elicit the truth and promote the ends of justice.” Chicago, B. & Q. R. Co. v. Kellogg, 54 Neb. 138, 141. So far as we now recollect, the court has never suggested what would amount to an abuse of discretion in that regard. To have separated these witnesses would seem to have been peculiarly appropriate in this case. It was urged that the witness Johnny Jones was of weak mind and under the influence and control of Clayton, with whom he worked. Clayton testified to a condition which would relieve himself of all guilt and place the awful responsibility for- this crime upon the young man. The boy. Jones reiterates the story of Clayton in all its details, and so the evidence of Roberts is overborne, and it is supposed to be, established beyond a reason*205able doubt that Roberts is alone responsible for the death of Connett. Such conditions call for the separate examination of the witnesses, and this court has never held that it is not an abuse of discretion to deny the request under such conditions. The reason given by the court for refusing to separate the witnesses was stated upon the record: “The temperature ranging about zero, and by reason of the fact that there is no place where witnesses can be kept, for the want of proper and suitable conveniences, the application is denied.” There were no conveniences at the theater to enable the court to conduct the trial in the regular and ordinary manner. The rights of the defendant were prejudiced, and this was made necessary principally because of the unauthorized removal of the trial from’ the court-room.
Edward G. Maggi, of the state board of pardons, who is also a member of the bar, was appointed by the court to assist the county attorney in the prosecution. Mr. Maggi was active in obtaining evidence and was an important witness in the case. Ordinarily it is not expected that the attorney in the case will be also a principal witness. Trial lawyers of experience hesitate to act as witnesses and active counsel in the trial unless under unusual circumstances it becomes necessary to identify some writing or supply some formal proof of a matter peculiarly within the knowledge of counsel as such. To discuss in argument the reliability and weight of one’s own evidence is embarrassing to counsel, and sometimes confusing to jurors. In this case, however, the part taken by Mr. Maggi in the trial does not seem to have been inconsistent with his position as a witness or his interest as an officer of the state.
The little girl offered by the defendant as a witness was a little less than seven years of age. The defendant asserts that if she were allowed to testify her evidence would satisfy the jury that Clayton and his» wife, who were first arrested for the crime, were the prin*206cipal criminals; that they directed him in disposing of Oonnett’s property and shared in the proceeds. The court, Avithout himself examining the little girl, left it substantially to Mrs. Clayton to determine whether she be alloAved to testify, and it is urged that Mrs. Clayton, not being under oath, and having reasons to fear that the evidence offered would convict her of crime, advised that the girl was not competent. The judge then informed the jury:
“Gentlemen, this is a child. ■ She has not reached the age of seven years. - She has not gone to school to exceed three months. We all know that at that immature age children get ideas from suggestion. To the court’s mind it would be cruelty to attempt to force a child of that immature age; she doesn’t know or understand any of the obligations of the oath, and therefore the court will not permit her to be put upon the stand, because of her immature age and because of her inability to understand and knoAV the obligation of an oath. The child is of that immature age that as soon as the suggestion is made that she come upon the stand, even though accompanied by her mother, she breaks down and cries through fear, and this takes place in the court’s presence and hearing.”
A little child is generally supposed to be likely to tell the truth, and the trial court will not usually reject her evidence without first examining her as to her intelligence and understanding. To examine another person, who may have the strongest motive to prevent the child from telling the jury just what took place, and to exclude the child’s evidence because of the say-so of the interested person so examined, is not the usual practice. It is not strange that the child was frightened. She was perhaps not accustomed to taking part in a state performance before a theater full of curious and excited people. If she had been encouraged by the court in the quiet and order of the usual trial court-room, separate and apart from the other witnesses, and free from *207fear of those interested parties who for their own protection may have tried to overawe her in advance, she might possibly have convinced the court that she had a clear remembrance of the whole transaction in question, and that she could relate it in such a way as to greatly assist the jury.
After the case had been submitted to the jury, and in' the absence of the judge, and without his order or knowledge, the bailiff permitted some of the jurors to leave the jury-room, and go to the court-room, and there, with the help of the bailiff, they gathered exhibits including as it is alleged, “a certain skull, a jaw-bone, the partial skeleton of a hand or some fingers, several shirts, a hat, cap, two or three pairs of trousers, a pair of shoes, belt, a post card one photograph of the alleged place where the alleged body was supposed to have been found, one white dress and a skirt belonging to Mrs. Clayton, * * * one bed comforter, together with some alleged human hair, and a suit case, and a photograph purporting to be a family photograph of the Connett family,” of which some had been received in evidence, and some had not, and took them to the jury-room, and there discussed the bearing of these promiscuous articles upon the probability of guilt of the defendant. This transaction requires no discussion. It is universally held that such misconduct requires a reversal.
It is also complained that a juror had before the -trial stated his positive opinions as to the guilt of defendant, but denied upon his voir dire examination that he had formed or expressed any such opinion; that one of the jurors in the jury-room stated important matters as facts, and drew a “map” of the locality of the crime, which showed different measurements and distances than those testified to by the witnesses, and otherwise misled his fellow jurors; that the bailiff talked with the jurors while they were considering their verdict. But these, and some other matters complained *208of, will not be likely to affect another trial, and it seems unnecessary to discuss them at length. The defendant has been unfortunate in his home life, or rather in his lack of a home, and in his vicious surroundings. His mother was living with Clayton, a convict of mature years, as his wife. If defendant is not guilty as charged, this man Clayton was the cause of Con-nett’s death. It is of the highest importance to determine, if possible, the truth of the matter. At all events, in view of the manifold errors indicated, this court cannot say that there has been a trial as the law requires, and the judgment is reversed and the cause remanded for further proceedings.
Reversed.
Rose, J. I concur in the reversal of the conviction on ‘two grounds: (1) There was prejudicial error in the transferring of the place of trial from the court-house to the opera house and in the resulting conduct at the latter place. (2) Failure of the Trial court to interrogate the child offered as a witness on behalf of defendant and the order preventing her from testifying without a proper inquiry into her capacity to testify require a new trial.