¶11. The mere fact that before the evidence was concluded on the trial of a capital ease, which lasted several days, the judge, after the court had taken a recess in the evening until the next morning-, left and went to his residence in an adjoining county to spend the night, and on another occasion, after the ease had been submitted to the jury and during a recess of the court, the judge again went to his home and spent the night, the jury in each instance being left in charge of the bailiff, would not render the trial of the accused void, and, after conviction, authorize his discharge upon habeas corpus. The case of Horne v. Rogers, 110 Ca. 362 (5.), 369 (35 S. E. 715, 49 L. R. A. . 176), and cases therein cited involved questions made upon application for new trial, and the judge’s absence occurred under different circum- , stances than those involved in the present case.
¶22. The judge did not err in refusing to discharge the petitioner on habeas corpus.
¶3Judgment affirmed.