¶1ÜN PETITION TO KeHEAR
¶2The plaintiff in error has filed a very forceful, sincere, dignified and urgent petition to rehear in this case. The petition is addressed solely to the portion of -our opinion dealing with the separation of the jury. The petition cites no new authority and is merely a reargument of. the matters so ably argued at the bar and in the briefs originally filed. The petition though screams with sincerity and conviction of the .right of. the pleader. We admire such a *74conviction in an advocate, and even though we cannot agree, it is an admirable quality. We in conference discussed this question at length and after much study and thorough deliberation arrived at the conclusion we did as attempted to be set forth in the original opinion. We have now, due to the sincerity of this petition, reconsidered the matter and are more convinced than ever of the correctness of our original opinion. Of course we are sorry that we cannot always reach the same conclusion that the advocate does but this is a matter of impossibility and we feel that when the question now before us is considered in an impartial light (one that no good advocate has) that the conclusion that we have reached is the only' right, logical and fair conclusion based on previous holdings of this Court as well as on logic and justice.
¶3An examination of all of our jury separation cases, which were considered in our original opinion, from a common-sense viewpoint it will be seen that these cases are all bottomed on the proposition, that is, the separation of the jury into one or more groups vitiates the verdict because the jury is thereby given an opportunity for contact with outsiders and the possibility of being tampered with. This is the reason back of the rule of why jury separation vitiates a verdict. Because when thus separated they can be more easily tampered with. As was said in one of our first cases, McLain v. State, 18 Tenn. 241 … “and mingle with the balance of the community.” In other words by the separation the jury was given an easier opportunity of getting something about the case which was not presented in the evidence.
¶4In Cartwright v. State, 80 Tenn. 620, at page 625, the Court again expresses the reason thus:
“It is the opportunity of tampering with a juror, *75afforded by the separation which constitutes the ground for a new trial, but if snch separation afforded no snch opportunity, there can be no cause for a new trial: [Stone v. State] 4 Hum [ph.] [27] 37”
¶5Under the record in the case now before ns the jury, male and female, though separated as shown in the original opinion were never out of the presence of the officers who were sworn to guard them. Clearly the oath taken by such officers required the respective officers to keep the jury separate and apart from other citizens, to suffer no one to communicate with them nor to communicate with them, him or herself, about the case. Clark v. State, 67 Tenn. 591. It seems to us that under such circumstance where a proper oath had been administered and there is nothing to the contrary that these presumptions of the officer doing his or her duty prevails.
¶6It is argued that the woman officer in charge of the woman juror should have been called by the State and subject to examination to show that she had not communicated with this juror or allowed this juror to communicate with others. '“Because of her close association with a special prosecutor for the State. ” We did not overlook this proposition by any means in our original consideration of the case. We felt that the trial judge who administered the oath to this officer considered this officer above such reproach. The counsel for the plaintiff in error made no question about this lady acting as an officer in charge of this juror at the time and every reason is that when the person would take this oath of office as she did there from the trial judge then in the absence of some definite showing to the contrary the clear presumption is that she did her duty.
¶7We are satisfied that we correctly analyzed Hickerson v. State, 141 Tenn. 502, 213 S. W. 917. Of course the *76Court did not hold in that case that the harmless error statute applied but this comment that we quoted was merely to the fact that the State had relied upon that and the Court would not apply it because it did not have the record before it. In other words this reasoning- is to the effect that if the record was before it then the Court could consider the application of the harmless error statute.
¶8-We cannot conceive that the error here complained of is “a basic constitutional right” of the plaintiff in error. The argument made on this is that just any separation of a jury would vitiate the verdict regardless of what happens. We do not so understand the authorities because they are as we heretofore said in this opinion based on the fact that through separation the jury may be tampered with or get other evidence that is not presented in a regular manner. Obviously this is picking out certain words and language and stretching the reasoning of those cases to a point that was never anticipated or considered. We can think of many, many instances of where jurors might be separated in the presence of an officer and not have an opportunity to be tampered with by others and of course it has never been noticed, no question is asked about it at all because over the years it has been conceded that under such situations there was no error — the accused was getting his every constitutional right and justice was being done. The Legislature evidently contemplated that this very question would arise when they passed Chapter 71 of the Public Acts of 1951. This Act has just been brought to our attention. It fully answers the question here made. It is a fair, correct and constitutional act. This Act provides :
“Be it further enacted, That in all cases where a *77■woman or women be sworn as a member or members of tbe jury in felony cases, it shall not be unlawful or render the verdict void for the women members of said jury to be segregated from the male members thereof when outside the courtroom where the case is being tried, on condition that each member of the jury remains in the custody of an officer or officers, duly sworn for that purpose.”
¶9After much study and a very thorough consideration we are convinced that our original opinion was correct. For the reasons therein and here stated we must overrule the petition to rehear.