¶1(after stating the facts.) The appellant asks for a reversal upon two grounds, which are set up in his motion for a new trial.
¶21. He insists that the court erred in not keeping together in charge of an officer at the noon recess the nine jurors already selected to try the case, and that the jurors were subjected to improper influences. In support of that part of his motion, he filed the affidavits of witnesses to the effect that the general topic of conversation on the street was the trial of Bud Reeves, and that the prevalent opinion was that he ought to be hanged. There was also filed the affidavit of the proprietor of a restaurant to the effect that the jurors took dinner in his house; that his house was filled with customers; that the general topic of conversation was the trial of Bud Reeves; and that the sentiment against him was frequently expressed.
¶3The cases of Frame v. State, 73 Ark. 501, and Vaughan v. State, 57 Ark. 9, relied upon by appellant to support his contention, are not applicable to the state of facts presented in this record. It is within the discretion of the trial court to permit the jurors to separate, or to keep them together in charge of proper officers. Kirby’s Digest, section 2390.
¶4'The rule announced in the cases above referred to, which were cases where the court had ordered the jury kept together, is that in criminal cases, where evidence is adduced _ tending to show that the jurors have been exposed to improper influences, the burden is upon the State to show that they were not in any way influenced, biased or prejudiced by such exposure, and that,' in the absence of such showing by the State, the verdict will be set aside. The rule is otherwise where the court exercises its discretion in- permitting the jurors to separate. In such cases the burden is upon the defendant to show that they were improperly influenced by the exposure.
¶5In the case under consideration, the court permitted the jurors to separate, and there was no testimony adduced to show tEat any conversation prejudicial to the appellant was heard by the jurors. It is not sufficient to show in such a case that they might have heard remarks prejudicial to appellant.
¶6Here the matters complained of occurred before the completion of the jury, and the appellant, without objection on his part, proceeded with the selection of other jurors, who presumably were subjected to the same influences as those complained of in the case of the jurors already chosen.
¶7The second error complained of is that the punishment is not warranted by the testimony and is excessive.
¶8There was but little conflict in the evidence. The jury evidently found that appellant was the aggressor, and that the killing was the result of a vicious and depraved disposition.
¶9Affirmed.