¶1The defendant, a negro, was indicted for ravishing a girl of his own color, under the age of twelve years, and there was evidence to establish that to be her age, and that he had had sexucl intercourse with her.
¶2An instruction was given at the instance of the state, to the effect that if the girl was under the age of twelve at the time, and the defendant had sexual intercourse with her, then he was guilty under the law. And at the instance of the defendant an instruction, the converse of the preceding one, was given. There is no complaint about the instructions.
¶3The jury returned a verdict of guilty, assessing the punishment at ten years in the penitentiary, and defendant has appealed. The point of complaint made in this court, as in the lower court, is the separation of the jury, and the evidence establishes that this occurred when the sheriff took the jury over to the hotel to dinner. Some of the jurors were in the dining room and some in the office. The fact that the dining table was crowded and, therefore, there was not room for all the jurymen to eat at once, furnishes not the shadow of an excuse for allowing them to separate. The law does not recognize such an excuse and accords to it no validity whatever. This is a capital case. Ex parte Dusenberry, 97 Mo. 504. And the law is mandatory that in such cases the jury shall not separate. State v. Murray, 91 Mo. 95, and cases cited.
¶4Judgment reversed and cause remanded.