(dissenting). I do not concur in this decision. It may be that the legal effect of the separation of a jury, generally, after the submission of a criminal case to them, is more accurately stated in the foregoing than in our former opinion, and that, considering that question only, the trial court should have found, upon a motion for a new trial, that there has been an illegal and prejudicial separation; but in my judgment, that does not determine this case, nor justify this court in sending the case back for another trial. The statute under whose coercion it is claimed this j udgment must be reversed is referred to in the foregoing opinion, and is section 7450, Comp. Laws. It says the trial court “has power to grant a new trial when a verdict has been rendered against the defendant, by which his substantial rights have been prejudiced, upon his application in the following cases only. * * * 3. When the jury have separated without leave of the court, after retiring to deliberate upon their verdict. * * *” This statute evidently contemplated that, even after submission, there may be a Separation of the jury with the leave of the court. In this case the circumstances of tbe separation were as follows: When it was announced in court that the court house was on fire, the judge, in hurriedly leaving the bench, made the only order which it was practicable to make under the circumstances. He directed the bailiff to take the jury out of the building into the yard, and to keep them together as much as possible until the extent of the fire could be ascertained. In attempting to carry out the order of the court, the bailiff did not succeed in keeping the jury together. It is a fact, as stated by the bailiff, that for a few minutes, “possibly five at the extreme,” a portion of the jurors were not in the immediate vicinity” of the officer, but that, within that time, he got them and kept them in a body and under his immediate supervision. The verdict of the jury was against the defendant, and the trial court refused Mm a new trial. I think the *294court was right. The statute starts out with declaring a condition upon which, only, the trial court “has power to grant a new trial.” That condition is when the defendant’s “substantial rights have been prejudiced.” That can only be when the cause assigned as a ground for a new trial may have, in some manner or to some extent, influenced the verdict. If, upon testimony, competent, specific, positive, uncontroverted, and unimpeached, either directly or indirectly, the jury return the only verdict which, under their oaths, they could conscientiously return, the condition of prejudice to substantial rights of the defendant does not exist, and the trial court ought not to be reversed because it sees it and acts accordingly.
But it is urged that, in the decision of the question of the legal effect of the separation of the jury, the court cannot consider the merits. This is right, to the extent that the court ought not to take upon itself the power of weighing conflicting evidence, and making its decision depend in such case upon its own view of what the evidence proves; but it is not right to the extent that the trial court must shut its eyes to the fact that the evidence was absolutely all one way, and that any other verdict than that rendered could only be returned by flagrant disregard by the jurors of their oaths. Armleder v. Lieberman, 33 Ohio St. 77, though a civil case, was in all other respects singularly like this. The statute regulating the conduct of the jury after retirement, and providing for a new trial on account of irregularities or misconduct of the jury, is set out in the opinion, and is not materially different from our own. In that case, a fire broke out in the immediate vicinity of the court house, and “suitors, witnesses, members of the court, and officers rushed in great haste out of the court house.” Two or three of the jurors were “without the presence of the officers in charge, standing on the steps of the court house, and mixing with the crowd on the outside.” The court, after reciting the statute, says: “Section 268 of the code, whether considered mandatory or directory merely, clearly requires that jurors remain together during the term of their deliberation, except when permitted to sep*295arate by order of the court. Yet, every departure from its letter will not be treated as an irregularity or misconduct on the part of the jury such as to require the verdict to be set aside. When, from the irregularity or misconduct of the jury, there is reason to believe a fair trial has been prevented, or that the verdict is the result of bad motive, it should be set aside. Many of the old rules regulating the conduct of the jury after retiring to the jury room to consider of their verdict have been abrogated. They are now to be treated as reasonable men, and their conduct will be considered and judged in the light of the circumstances under which they acted, as well as the motives which influenced the conduct to be considered. The separation of this jury was an irregularity, and, technically, might be called misconduct. But what are the circumstances inducing the separation? While deliberating, an alarm of fire is heard in the jury room. The fire is blazing in a large block of buildings near the jury room. The court, officers, attorneys, witnesses, all in demoralized eagerness, are hastening from the court house. The jurors see and hear all this, and, partaking of the general feeling of excitement, and perhaps curiosity, are let out of their jury room, — not to do an unlawful act; not with the purpose to violate their oath or smirch their verdict. The act of separation was technically a violation of the statute, but involved no moral wrong, and in our opinion, could not in any degree tend to prevent a fair trial or an honest verdict. * * * * "Upon the whole, we thing the rule that will best secure the desired result would be that, in cases where the irregularity or misconduct of the juror appears to have operated in favor of the successful party, and, as a necessary consequence, to the prejudice of the unsuccessful party, a new trial should be granted. On the other hand, where it appears that it has produced no such result, the verdict should be permitted to stand.” And so I say, in this case, that the record itself absolutely disproving, as it does, that such separation did or could have tended “to prevent a fair trial or an honest verdict,” the irregularity worked no prejudice to defendant’s substantial rights, and so was no ground for a new trial. *296It was an irregularity only in the conduct of a legal jury, and, like any other irregularity, did not require a retrial of the case, where it affirmatively appeared that defendant suffered nothing from it. It is unlike the case of a fundamental defect in the composition or character of the jury, over which the court has no control.
The contention here is not that the defendant has been practically injured, or that a different verdict could have properly been rendered upon the evidence, if the jury had been hermetically sealed in an impenetrable box, but that an abstract rule of law will offended against unless this verdict, though right, is set aside, and the ceremony of another trial repeated. The rule was made to protect suitors from corrupt and dishonest verdicts; but to set aside a confessedly right verdict is to force a presumption of prejudice-against an established contrary fact, to apply the rule to a case for which it was never intended, and, generally, to sacrifice substance to shadow. I confess I am unable to comprehend why the vitiating effect of a separation should be avoided by affidavits showing no approach to, or interference with, the jury, as a means of showing no prejudice, and yet the duly-certified record, so conclusively proving the very objective fact of non-prejudice, should be so sedulously excluded from the consideration of the court. Nothing more is here involved than the application of the familiar rule that non-prejudicial error or irregularity is no ground for a new. trial. This same section (subdivision 5) makes it equally a ground for a new trial “when the court has misdirected the jury in a matter of law”; but, in this very case, as will be seen by reference to our former opinion, we find and hold that the trial court did so misdirect the jury; and yet none of us thought a new trial should be granted on that account. As to that, we said the misdirection, though error, was immaterial, because it was evident that it could not have influenced- the verdict. In this case, it is not claimed, or even suggested, that, upon the simple question of whether or not the defendant sold “lagar beer” without permit, the verdict could, upon the evidence, have rightfully been otherwise than as it was. That question of fact settled, the law, as construed by the court, *297holds the charged offense proved, and the defendant guilty. It is however, urged that upon the question of guilty or not guilty the jury1 is supreme; and that it may find the defendant not guilty, though the evidence is conclusively the other way." To the extent that this is true it is unfortunately so; but, upon the evidence in this case, the verdict of the jury was absolutely right, and for that reason the separation of the jury could have resulted in no predudice to the defendant; and I am unwilling to now vacate it, and send the case back for another trial, upon the strength of the suggestion that another jury might exercise the prerogative of disregarding the evidence and their obligation, and so might return a verdict of acquital upon evidence requiring a verdict of guilty.