Dissenting Opinion.
MoBneky, J.In my opinion the verdict and sentence in this case should be set aside and the case remanded.
The testimony in the record which was offered on the motion for a new trial, shows that rifles were introduced into the jury room on Saturday night, and on Monday morning pistols were distributed among them. The deputy sheriff who furnished the arms to the jury *372says that the rifles were deposited in the jury room because of an apprehended attack on the jail. That he conversed with another party in the presence of the jury in relation to this expected attack on the jail by the friends of the accused. He did not know whether the jury heard this conversation. But they must have heard it and understood it, and that they believed also that they were threatened, is evident from the fact that they asked for the pistols which were' distributed among them. I can not reconcile this conduct of the jury, standing as armed sentinels in the jury room, with my ideas of that impartiality which should prevail in their deliberations. They were evidently alarmed and were in fear of an attack from the friends of the accused. It is not reasonable to suppose that such fear did not influence them.
The rumor of an attack was, it is true, totally unfounded, but the jury evidently believed in its existence.
I therefore respectfully dissent from the opinion and decree rendered in this case.