The opinion
Myrick, J., concurring:
I concur. The evidence contained in the affidavits is conflicting as to whether the juror Winn was intoxicated at the time of the rendition of the verdict, and as the motion for a new trial was denied, the Court below must have concluded that intoxication did not exist. But it is an undisputed fact that beer to the amount of three or four kegs was kept in the • juryroom on tap, and was daily used, and that two gallons and three or four bottles of wine, and frequently whisky, was drank. This was such improper conduct' on the part of the jury as calls for a reversal of the judgment, based upon the verdict. A jury is to be provided with suitable and sufficient food. (Section 1136 Penal Code.) It requires no argument to show that the beer, wine and whisky consumed was not suitable and sufficient food.
McKee, J., concurred with Mr. Justice Myrick.
McKxnstry ajstd Boss, JJ., concurring:
We concur in the judgment. When some of the jury, in addition to the “suitable” food furnished by tho Sheriff, obtained and consumed fifteen to twenty gallons of beer, two demijohns of wine, two bottles of whisky, and, also, other *187 wine and whisky at' each meal (including breakfast)- they were guilty of such misconduct as made it the, duty of the Court below to grant a new trial. We also agree that the Court below properly admitted, in evidence, the dying declarations of the deceased.