On Petition to Rehear
Burnett, Justice.We have herein a forceful, courteous and dignified petition to rehear. As we view this petition it is directed to a misconceived idea that we held in this case that jurors need not be kept together and not allowed to separate prior to their being sworn to try the issues joined. It was not the intention of this Court to so hold and probably the misconception of our holding is due to the inapt way that we expressed the question in our opinion. It was the thought of this Court to review many of these previous cases, and some of other jurisdictions, but not to change any rule or overrule any previous cases.
In the consideration of the case we did re-examine the law upon the subject and noted that despite two of our *197old eases to the contrary, the weight of authority was that the jury might lawfully be permitted to separate prior to their having been sworn but we did not base our opinion on this point. It was our intention to hold and we now hold that in this particular case the offer of the trial judge to permit the selection of the jury anew which was concurred in by one of the counsel for one of the plaintiff’s in error and was not objected to from other counsel for the other defendants was equivalent to the selection anew of the jury. It was on this point that we based our decision in the present case. What we said with reference to the weight of authority was by way of observation ¿s to the change in the state of the previously existing law and was not in the slightest degree the basis of our holding but to the contrary our holding was based on the matters above mentioned, that is, that in this particular case the offer of the trial judge to permit the selection of the jury anew wherein one of the counsel accepted five of the jurors previously accepted, with no dissent from other counsel, was the equivalent of the selection anew of the jury.
The petition again deals with the question of the poll of the jury. We in the original opinion and now conclude that there was no error in the poll of the jury and as suggested in the original opinion we 'think another method might be better but the method as used herein was not prejudicial to the plaintiffs in error.
We have carefuly considered the petition to rehear and must overrule the same for the reasons above expressed.