¶1concurs in results:
¶2The majority opinion apparently misinterprets our holding in Born v. State, 397 P.2d 924 (Okl.Cr.App.1964), cert, denied, 379 U.S. 1000, 85 S.Ct. 718,13 L.Ed.2d 701. The majority opinion and the State’s brief assert that the Borndecision addresses itself to the issue of whether communications with the jury after the jury has retired for deliberations constitute reversible error. In Born v. State, supra, this Court never reached this issue. In Bornthe appellant argued he was denied a fair and impartial trial because “the jury was permitted to separate and they were placed in the office of the county commissioner’s office and not the regular jury room, ... and were permitted to intermingle with the spectators ...”
¶3Bornheld that this procedure violated Title 22 O.S.1951, § 857, which stated:
“After hearing the charge, the jury may either decide in court, or may retire for *308deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.”
¶4In addressing Born’s argument this Court merely held that the record did not contain any proof that Title 22 O.S.1951, § 857 was violated. We stated that a defendant is required to present evidence to the trial judge of any possible violations. “Where there is proof of violations, prejudice is presumed, and the burden is on the State to overcome such presumption.” Bom v. State, supra at 935.
¶5However, I agree with the majority that the Borndecision does not support the appellant’s assignment of error in this case and therefore concur in the result.