delivered the opinion of the court.
The instructions given on the application of the State were not excepted to at the time they were given, nor were they made the ground of objection on the motion for a new trial. We are therefore precluded from an examination of that assignment of error in which their correctness is questioned.
No bill of exceptions embodying the evidence delivered on the trial was taken, but after conviction the appellant moved for a new trial, upon the ground of misconduct on the part of the jury, and because the jury was exposed during its deliberations to unlawful influences, which might have controlled or affected its verdict.
In support of this motion, the appellant introduced as a witness the district attorney, by whom he proved that after the jury had been selected and sworn, but before any testimony was offered, he saw one of the jurors, in company with the’ bailiff in charge of the jury, in a public bar-room situated one hundred yards from the court-room, where both the juror and the bailiff took a drink of spirituous liquor; that other persons were present in the bar-room at the time, but that he heard no one speak to the juror, nor did the juror in his hearing speak to any person. It was also proved that the court discharged this bailiff because of his conduct in the matter, and that after he had been discharged he went into the room where the jury was, and closed the door behind him. It was also proved that during the progress of the trial, some of the jurors, in charge of an officer, were permitted to leave the court-room and go to *505the privy, which was located about forty yards from the courthouse ; and that a servant who had brought the jury their dinners entered the jury-room to remove the dishes. On the part of the State, it was shown, by the testimony of the bailiff who had accompanied the juror to the bar-room, that no one spoke to him while there, and that he spoke to no one ; that both he and the juror took one drink of whiskey. He further stated that, after his discharge as bailiff, he went for a moment into the jury-room for his hat, but did not speak to the jury, nor did any member of the jury speak to him. It was clearly shown by the officer who had charge of the jury that no conversation was had by the servant who had entered their room, and that no one had access to the jurors who left the room to go to the privy. This officer also stated that he was sitting near the door of the jury-room when the discharged bailiff entered the room, and that he said nothing while in the room except to ask for his hat, and that he was immediately recalled by order of the court.
While we strongly condemn such breach of propriety and duty as the record shows the juror and the bailiff to have been guilty of in entering into the bar-room and partaking of intoxicating liquor, we think the evidence introduced by the State shows that no unlawful influence was put in force to control or direct the verdict of the jury. It is not every act of misconduct on the part of jurors which will entitle a defendant to a new trial, but where such acts are shown, if they are of such character as may have prejudiced the defendant, the 'presumption is that they did, and it devolves upon the State to establish the fact that such result did not follow. But where all the facts and circumstances are known, and it appears with reasonable certainty, that though there was exposure to influences wdiich might have perverted or corrupted the judgment of the juror, it was not done, then the verdict ought to stand.
The separation of a juror from his fellows, under circumstances in which communication might be held with him, would, in a capital case at least, be fatal to the regularity of the proceedings, if no other fact was shown; for, as he might have been tampered with, the law will presume that it was *506done. If, however, it is clearly shown that in fact the juror was not communicated with, the presumption no longer exists, and the verdict will be upheld.
If a juror should partake of intoxicating liquors sufficiently to confuse his mental or pervert his moral faculties, such conduct would be fatal to the verdict; but where the quantity of liquor drank is known, and it is apparent that it did not unfit the juror for the performance of his duty, a new trial ought not to be granted. In this case, the liquor was drunk before any testimony had been given in the case, and evidently during a recess of the court, the quantity was small, and there is no suggestion that the juror exhibited any signs of its effects at the time, or after his return to his fellows.
While we feel a natural repugnance to affirm a judgment in a case of such magnitude as this, when a juror, forgetting or disregarding the solemn responsibilities of his office, has been guilty of so gross a breach of propriety, we think the facts shown render it so improbable that any injury could have been thereby done to the appellant, that we are constrained to affirm the judgment. State v. Upton, 20 Mo. 397; Roman v. State, 41 Wis. 312; Westmoreland v. State, 45 Ga. 225; Thompson v. Commonwealth, 8 Gratt. 637; Pope v. State, 36 Miss. 121; Russell v. State, 53 Miss. 367.
Judgment affirmed.