(dissenting) — I would affirm both convictions. The trial judge properly allowed the jury to separate during deliberations pursuant to CrR 6.7 and neither defendant has shown any prejudice caused by such separation.
The majority opinion is devoted in great part to the history of jury separation. Such discussion, while educational, clouds the real issue in this case — which is, does CrR 6.7 exclusively deal with jury separation in a criminal trial?
CrR 6.7 provides:
The jury may be allowed to separate if the court finds that good reason exists to believe that such would not jeopardize a fair trial. Any motions or proceedings concerning the separation of the jury shall be made out of the presence of the jury.
CrR 6.7 was promulgated in 1973 and amended in 1976 pursuant to our rulemaking authority. Our ability to promulgate the rule is not questioned, as jury separation is a procedural matter. State v. Turner, 16 Wn. App. 292, 298, 555 P.2d 1382 (1976). As a rule governing the procedure in criminal proceedings it supersedes all conflicting procedural statutes. CrR 1.1.
While the majority concedes that CrR 6.7 supersedes RCW 10.49.110 (prohibiting jury separation in criminal trials), it holds CrR 6.7 does not conflict with cases applying RCW 4.44.300 (prohibiting jury separation during deliberation in a civil trial) to criminal proceedings. CrR 6.7 *769by its plain language allows separation during deliberations in a criminal trial. It conflicts with and therefore supersedes the case law application of RCW 4.44.300 in criminal trials.
We have held that in interpreting our rules we adhere to principles of statutory construction. One of those principles is that language which is clear on its face does not require or permit construction. State v. McIntyre, 92 Wn.2d 620, 622, 600 P.2d 1009 (1979). Another principle is that terms used in court rules should be given their plain meaning. State v. Johnson, 21 Wn. App. 919, 587 P.2d 189 (1978). Our rule CrR 6.7 is clear on its face and thus no construction is permitted. It allows a trial court discretion to allow separation and it does not limit this discretion to a particular phase of a trial. Rather, it applies to all phases of a trial. The ordinary meaning of trial clearly includes jury deliberations. A "trial" is defined as "all proceedings from the time when the parties are called to try their cases in court or from the time when issue is joined to the time of its final determination". (Italics mine). Webster's Third New International Dictionary 2439 (1968). RCW 4.44.030 makes a distinction between jury deliberation and other phases of a trial in prohibiting jury separation. CrR 6.7 makes no such distinction in allowing separation.
The majority gives several reasons for its "harmonization" of CrR 6.7 and RCW 4.44.300 as applied in criminal proceedings. First, it cites the comment to CrR 6.7 which states that the rule supersedes RCW 10.49.110 and fails to mention any other statute. The comment, of course, is not the rule and thus we are not bound by it. Additionally, the comment does not purport to be all inclusive in its listing of superseded statutes and case law. Second, the majority concludes that CrR 6.7 "is quite susceptible to the interpretation that it applies only to proceedings prior to submission of the case to the jury." Majority opinion, at 765. The majority in making this conclusion gives no support for it. It does not point to any language in the rule which lends itself to this interpretation nor does it point to any other authority. In fact the cases cited wherein RCW 4.44.300 was *770inexplicably applied to criminal trials were all decided prior to the adoption of CrR 6.7. The majority merely states that its interpretation allows CrR 6.7 to be harmonized with this court's prior cases applying RCW 4.44.300 to criminal proceedings. Many statutes and rules could be "harmonized" if their words are ignored — which is what the majority does here. The majority's strained harmonization will allow our rules, no matter how clear on their face, as CrR 6.7 is, to be questioned and ignored.
Another reason expressed by the majority for its "harmonization" of the rule and statute is that to do otherwise creates an anomalous situation. Clearly, if we give full effect to CrR 6.7 in criminal cases, RCW 4.44.300 as applied in civil cases remains in force. Thus in a civil action there could be no separation after deliberations have begun (RCW 4.44.300), whereas in criminal actions there could be jury separation in the discretion of the judge (CrR 6.7).
The Court of Appeals, Judge Durham writing for the court, recognizes this anomalous situation and "await[s] the wisdom of the Supreme Court to resolve this quandary." State v. Smalls, 32 Wn. App. 693, 697 n.1, 649 P.2d 169 (1982). The majority's "wisdom" is to ignore the plain terms of the criminal court rule. This case presents no anomaly in the application of CrR 6.7. The anomalous situation caused by the application of CrR 6.7 in criminal cases and RCW 4.44.300 in civil cases was created by rule and must be resolved by rule. There are two proposed rules now before us which address the problem. Proposed CR 47(i) and proposed CrR 6.7.1 This rulemaking process is the *771proper forum to change our procedural rules — this case is not.
Furthermore, I cannot agree with the majority's purported "sound policy" which it claims lends support to its position. The majority contends that jurors are subject to a myriad of prejudicial influences when separated. The majority assumes that jurors will be influenced by a "chance remark by a juror's spouse or a program watched on television". Majority opinion, at 766. Pursuant to CrR 6.7, the trial judge, who has the parties, the evidence and the jurors all before him, may allow the jury to separate if there is good reason to believe a fair trial will not be jeopardized. Criminal cases differ markedly in the seriousness of the charge, the length of trial, and the levels of publicity surrounding them. The trial judge is in the best position to determine whether it is appropriate in a particular case for a jury to separate and the tempered discretion afforded by CrR 6.7 allows a trial judge to handle a situation in light of all the circumstances. The majority, however, divests the trial judge of this discretion. The majority's result will *772greatly inconvenience jurors in cases where there is no legitimate reason to do so. One defense counsel conceded at oral argument that he usually agrees to jury separation. This belies the majority's argument that prejudice is presumed when a jury separates. Further, the majority assumes jurors will ignore admonishments from the trial judge as to their duties while separated. The majority's attitude could well be construed to be elitist and paternalistic in assuming trial judges and jurors cannot perform their jobs.
I, therefore, respectfully disagree with the majority. The trial court complied with the terms of CrR 6.7 and the plain language and effect of that rule must be applied in these cases. If this court chooses not to allow jury separation during deliberations in a criminal trial, it may do so by amending the rule, but not by convoluting the plain language of the existing rule..
Dolliver, J., concurs with Dimmick, J.
Reconsideration denied August 24, 1983.
CR 47(i), as proposed, provides:
"(1) Generally. During trial the jury shall be allowed to separate unless good cause is shown, on the record, for sequestration of the jury. After the case has been formally submitted to the jury for decision, and throughout the jury's deliberations, the jurors shall be allowed to separate only on stipulation of the parties.
"(2) Communication Restricted. Unless the jury is allowed to separate, the jurors shall be kept together under the charge of one or more officers until they agree upon their verdict or are discharged by the court. The officer shall keep the jurors separate from other persons and shall not allow any communication to be made to the jurors, nor make any himself, unless by order of the court, except to *771ask the jurors if they have agreed upon their verdict. The officer shall not, before the verdict is rendered, communicate to any person the state of the jurors' deliberations or their verdict.
"(3) Motions. Any motions or proceedings concerning the separation or sequestration of the jury shall be made out of the presence of the jury."
CrR 6.7, as proposed, provides:
"(a) Generally. During trial the jury shall be allowed to separate unless good cause is shown, on the record, for sequestration of the jury. After the case has been formally submitted to the jury for decision, and throughout the jury's deliberations, the jurors shall be allowed to separate only on stipulation of the parties.
"(b) Communication Restricted. Unless the jury is allowed to separate, the jurors shall he kept together under the charge of one or more officers until they agree upon their verdict or are discharged by the court. The officer shall keep the jurors separate from other persons and shall not allow any communication to be made to the jurors, nor make any himself, unless by order of the court, except to ask the jurors if they have agreed upon their verdict. The officer shall not, before the verdict is rendered, communicate to any person the state of the jurors' deliberations or their verdict.
"(c) Motions. Any motions or proceedings concerning the separation or sequestration of the jury shall be made out of the presence of the jury." 98 Wn.2d advance sheet No. 3, at xli and xlii (January 7, 1983).