The defendant was convicted of the crime of rape and sentenced to the Penitentiary during life. He appeals from the sentence.
The record contains three bills of exceptions, embodying the reasons *658stated by defendant why he should be allowed a new trial, which was refused:
First — The accused, in support of his motion for a new trial, offered one Alexandre Lepine, one of the jurors who sat on the trial of the case, as a witness to prove that after the jury had received the charge of the judge and had retired for consultation the jury was divided in their opinion as to the verdict to be rendered, and that it was then and there urged.upon the jurymen unwilling to convict by those who were in favor of conviction that the accused had no defense because his counsel had submitted his caketo-the jury without argument, and that this testimony was offered to show that the jury did not come to their verdict by considering the law and the evidence. . '
The introduction of this evidence was objected to by the district attorney and rejected by the judge. The testimony was utterly inadmissible, and was properly refused by the court.-
Second — That upon the impaneling of the jury, and before rendition of their judgment, there was misconduct on the part of one of the jurors in this, and a separation of the jury in this, viz.: that the juror, after the jury had been impaneled and sworn, and while they were yet in the jury-box, left his seat and held- a whispered conversation with the district attorney.
The court overruled this objection, and appended to the bill of exceptions the following: The-juror, without permission of the court or consent of the accused, left his seat in the jury-box and advanced to where the district attorney was sitting and whispered something in his ear. The district attorney made no answer, but merely shook his head, whereupon the juryman immediately .returned to his s.eat. All this occurred in open court, in presence of the¡ accused, the officers of the court, counsel of the accused, and the other jurymen.” The court was of the opinion “ there was neither a separation of the jurynor misconduct on their part, and that the verdict of . the jury was strictly in accordance with the law and the evidence.” The ruling of the judge we think correct. i- . .
Third — The district attorney offered the evidence of himself and the juror whose act-was complained' of to establish what it was that passed at the time the juror whispered in the ear of the district attorney, and to explain it. Objections were made to the. comiietoncy of these witnesses. .
The court overruled the objections for the reason that “ it is well established that however improper the conduct of the juror may have been, yet if it does not appear that it was «occasioned by the prevailing party or any one else -in his behalf, if it does not indicate an improper, bias upon the juror’s mind, and the court can not see that it either-had,-or *659might have had, an effect unfavorable to the party moving for a new trial, the yerdict ought not to be set aside.” Archbold’s Criminal Practice and Pleadings vol. 1, page 638. 'We see no error in this ruling.
The defense we regard as having no force.
It is therefore ordered that the judgment appealed from be affirmed with costs.