¶1Concurring Opinion
¶2I concur in the result of the majority opinion herein, but wish to point out certain facts which, in my opinion, require limited discussion.
¶3The separation of the juror without a hearing, out of the presence and without consent of the defendant’s counsel, is always fraught with peril. The alleged permission granted the juror was such that had a proper *22attack thereon been mounted, it is possible a different result might have been obtained. The ostensible request of the juror to be permitted to leave his fellows after the jury had been finally instructed, and after deliberations had commenced, to make arrangements for the care of his livestock, could easily have been made through the bailiff without the necessity for separation of the juror.
¶4Ordinarily prejudice and injury to the defendant would be presumed by the juror being separated from his fellow jurors under the circumstances here delineated. In the instant case, however, appellant makes no allegation of injury by reason of the action herein complained of.
¶5The citation of Smith, Peak v. State (1961), 241 Ind. 311, 170 N. E. 2d 794, in my opinion, is distinguishable on the facts and therefore is not pertinent to the issues herein raised, consequently it lends no substantial support to the majority opinion.
¶6In view of the failure to allege specifically that the defendant was injured by the separation, and failure of appellant to follow certain procedural requirements, the judgment must be affirmed.
¶7Note. — Reported in 202 N. E. 2d 161.