The opinion
On Application for Rehearing
Both appellant and appellee have become applicants for a rehearing. Beyond that unanimity ceases.
The Attorney General argues that Golden’s counsel, in not calling to the court’s attention the separation seen by them during the noon recess, waived the error, since the jury was allowed to retire without a motion for a mistrial having been made by Golden.
Penney v. Grant, 16 Ala.App. 510 , 79 So. 271, 272 , comes nearest to supporting this view:
“ * * * But, having the knowledge in his possession, the defendant will not be permitted to speculate upon the verdict, and, if unfavorable, have it set aside. This would itself be a trifling with the court, which should not be permitted. * * * ”
There the alleged impropriety was:
“ * * * that the plaintiff, during a recess of the court, and while the trial was in progress, made improper remarks to one of the jury derogatory to the character of defendant, * * ”
The cases distinguish between misconduct of a juror on his own initiative (e.g., Jones v. Coley, 219 Ala. 23 , 121 So. 24 ) and that springing from the conduct of one of the parties, Ex parte Alabama Fuel & Iron Co., 212 Ala. 1 , 101 So. 642 , where the court, per Thomas, J., said:
“We do not think the knowledge by defendant’s attorney of the juror’s con *372 duct during the trial was a waiver of that misconduct because not brought to the attention of the court until the verdict was rendered. * * * ”
None of these cases involve separation of jurors pending verdict. Considering the presumption of prejudice arising from separation, we do not deem the knowledge by the defendant’s attorney to be a waiver of the error. ■ Also, to move for mistrial puts the defendant in the position of an adversary with the jury.
“ * * * To require a party to make his objection pending the trial might still further prejudice him, especially if it should happen that he was mistaken in making the charge, though ever so honest.” Craig & Co. v. Pierson Lumber Co., 169 Ala. 548 , 53 So. 803, 805 .
We have reviewed our original opinion and the judgment thereon and adhere to them.
Applications overruled.