In capital cases, the jury, after having been sworn, shall be kept together in charge of a sworn officer, during all the adjournments of the court, unless otherwise ordered by the court with the consent of the parties.43 But the separation of a jury without such consent, even in capital cases, is not sufficient of itself for setting aside a verdict otherwise right. It must appear that some of the jurors might have been tampered with or improperly influenced to the prejudice of the accused before the court will interfere with the verdict.44 If any juror is permitted to separate himself from the others and mingle with a crowd of persons, unaccompanied by a proper officer, it will be presumed that the rights of the defendant were prejudiced by this conduct of the juror, until the contrary is shown by the prosecution.45 But in all cases less than capital, it is the practice generally to permit the jury to separate during recesses or adjournments.46

Tenn., 724; People vs. Broth-erton, 43 Cal., 530; State vs. Start, 60 Kan., 256. 40 Hughes' Cr. Law, Sec. 2953; People vs. Casey, 96 N. Y., 115; People vs. Wilmarth, 156 N. Y., 566; Thompson vs. People, 26 Colo.. 496.

41 Hughes' Cr. Law, Sec. 2963; Van Blaricum vs. People, 16 Ill., 364; People vs. Decker, 157 N. Y., 186; Clifford vs. People, 229 Ill., 633-642.

42 State vs. Angelo, 18 Nev., 425; State vs. Rollins, 22 N. H, 528; Hughes' Cr. Law, Sec. 2966.