Patrick Quinn was indicted and convicted of murder in the second degree.
On his trial, a boy (his son), seven years old, was examined as a witness. The Court examined him, and were satisfied of his competency. Nothing appears showing the ruling incorrect.
The boy was a witness for the state, and the state was permitted to impeach him by contradicting his statements. This is allowed in civil cases. 2 R. S. p. 83, § 244. But we have found no provision in the criminal code changing the common-law rule; and it has been decided that the provisions of the civil code do not, as matter of course, *590govern in criminal practice. Miller v. The State, 8 Ind. R. 325, on p. 328. At common law, such a practice is not tolerated. Thompson v. Blanchard, 4 Comst. (N. Y.), 303.
T. D. and R. L. Walpole and S. A. Colley, for the appellant. J. E. McDonald, Attorney General, for the state.The Court permitted the jury trying the cause to separate, and disperse themselves among the people during the adjournment of the Court, pending the trial, against the consent, and over the objection and exception of the defendant. We think this was error. The Court may permit such separation with, but not against the consent of the defendant. See McCorkle v. The State, at the last term (1).
Per Curiam.The judgment is reversed, cause-remanded for a new trial, and the clerk is instructed to notify the warden of the penitentiary accordingly.
Antey 39.