175 N.W.2d 604
File No. 10681.Supreme Court of South Dakota.
Opinion filed March 17, 1970 Rehearing denied April 7, 1970
Appeal from Circuit Court, Minnehaha County; Hon. Andrew W. Bogue, Judge.
Page 639
Affirmed.
William D. Kenyon, Sioux Falls, for defendant and appellant.
Gordon Mydland, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for plaintiff and respondent.
PER CURIAM.
The defendants, John Steven O’Connor and John Jensen, were jointly charged with breaking and entering with intent to commit larceny (SDCL 22-32-9). A motion of defendant O’Connor for a separate trial was granted. From judgment of conviction based on a jury verdict, he appeals.
Sufficiency of the evidence to sustain conviction is not questioned. Appellant claims reversible error in that (1) a mistrial should have been granted on the ground that the jury improperly separated and that (2) an examination of a witness for defendant by the court deprived him of a fair trial.
It appears from the evidence introduced on motion for mistrial that during the noon hour after the case had been submitted the jury was taken to a cafeteria and returned to the courthouse in three automobiles as a part of a convoy. There were no occupants in the automobiles other than the jurors and two bailiffs. They had their lunch in a room with no other persons present. The jurors did not come in contact with third persons.
The authorities cited by appellant do not sustain the claim of improper examination of a witness by the court. The examination was fairly and impartially conducted.
A careful consideration of the record before us and the contentions of appellant fail to disclose any prejudicial error. The judgment appealed from is, therefore, affirmed.
Page 640