¶1The following memorandum was filed September 15, 1936:
¶2(on motion for rehearing). A motion for rehearing was duly filed by the defendant, but the filing of a brief in support of the motion was long delayed. No brief in opposition to the motion was filed by .the attorney general, the special prosecutor appointed by the court, or the district attorney. In absence of an opposing brief, a hearing before the members of the court in chambers was invited, at which the attorney for the defendant and the special prosecutor appeared. After this hearing the district attorney was invited to file an opposing brief if he desired, and no brief has been received.
¶3In view of this unusual situation we have carefully reconsidered the case. We perceive no error in the rules of law stated and applied in the opinion of the court heretofore filed, but are persuaded that upon the record there is such doubt of the defendant’s connection with the crime involved that a new trial should be ordered in the interest of justice, and it will be so ordered. By reason of matters stated in the former opinion of the court respecting statements made to and in the presence of jurors, we consider that upon retrial of the case *302the jurors should be kept in custody of an officer, as is required on trials of charges of homicide.
¶4The mandate heretofore entered is set aside; the judgment and sentence of the circuit court is reversed; and the cause is remanded for a new trial in accordance with the opinion. The warden of the state’s prison is directed to remand the defendant to the custody of the sheriff of Dunn county, to be held pursuant to the order of the committing magistrate.