Whether or not the cause had been finally submitted to the jury at the time that body was permitted to separate at the noon hour is the important question in the ease. Primarily it is a question of fact, but the actual facts not being in dispute it becomes a question of law.

Without doubt it is the policy of our statutes that the jurors to whom shall be committed the question of the guilt or innocence of one charged with crime, should be prevented from receiving impressions during the trial calculated to influence the verdict, except such as are legitimately conveyed to them by the evidence, the arguments of counsel, and the charge of the court. Hence our statute, Section 7312, provides that:

“When the ease is finally submitted, the jurors must be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict, or are discharged by the court; the officer having them in charge shall not suffer any communication to be made to them, nor make any himself, except to ask them if they have agreed upon a verdict, unless by order of the court; * * * and if the jurors be permitted to separate during the trial, they should be admonished by the court that it is their duty not to converse with, nor suffer themselves to be addressed by, any person, nor to listen to any conversation on the subject of the trial, nor to form or express an opinion thereon, until the cause is finally submitted to them.”

This section, as it stood in the criminal code (Section 164), prohibited the separation of jurors in the trial of felonies after being sworn until discharged, and in the trial of misdemeanors separation was forbidden after the charge of the court until discharged. The clear implication is that, by the amendment-now embodied in the section above cited, it was intended to permit separation in all criminal cases during trial, and before submission, coupled with the admonition to the jury above stated, and that such separation would not naturally tend to subject the jury to improper 'influences, nor in any way prevent a fair trial. Another feature of the amendment is of importance in this eon-', nection. “After receiving the charge of the court,” is the con-*990eluding phrase of the old section; “until the cause is finally submitted to them,” is the concluding phrase of the section as it now stands, and the entire section (7312) hinges on the condition with which the section begins, viz., that the case has been “finally submitted.” Another implication from this same section would seem to be fairly clear, and that is that the giving of the charge of the court might not in all cases afford the test of whether or not the case had been finally submitted. It is true that a preceding section (7300) provides that at the conclusion of the evidence either party may request instructions to the jury on .points of law to be given before argument, and it is suggested that these instructions might be regarded as a charge and that this induced the changed phraseology of the amendment. But this provision was also embodied in the criminal code (Section 151), and remains substantially the same. So that the fair inference is, that the charge referred to in the code is the general charge which is to be given immediately after argument. This inference is strengthened when we remember that it has been customary in our courts from time immemorial for the court, at the end of the argument, or of the evidence where no argument is had, to give a general charge to the jury, and oiir legislation respecting the conduct of trials always has been, and we think should be, construed in the light of the practice which has prevailed. Hence, when the old statute forbade separation of the jury after receiving the charge of the court, it was this general charge which was referred to, and were that language in the present law no doubt would exist as to the requirement to keep the jury together after receiving the charge until discharged.

It is the contention of defendant in error that while the language of the old and the new is different, yet there is no difference in the meaning; therefore that the separation of the jurors was a violation of the mandatory provision of the statute, a statute enacted to protect the rights of persons charged with crime, and prejudice will be conclusively presumed; hence the error is fatal to the judgment.

Several objections occur to this proposition. If it had been the purpose of the lawmakers to provide that the giving of the judge’s charge should invariably be regarded as a final submission, no reason whatever is apparent for the change of the *991statute. Tbe former rule was a simple one, easily understood and as easily followed. For some reason the change was deemed important. "We think the natural inference ,is that it was intended to remove the iron-clad rule and leave some discretion in the trial judge as to when he would finally submit the case. The statute requires the delivery to the jury of the written charge when a written charge has been requested, and it is usual to deliver also the indictment, blank verdicts, and such exhibits as may be put in evidence, and the submission would not be fully completed until that had been done. Nor does it follow, though this separation be deemed an irregularity, that prejudice to the rights-of the defendant is to be presumed. We suppose the rule is well settled that where the failure to observe a statutory requirement naturally works prejudice to a party, the burden is not on him to show that he was in fact prejudiced. It is observed in McHugh v. State, 42 Ohio St., 154, opinion by Okey, J., that:

‘ ‘ Ordinarily, if a statutory provision or principle of the common law, applicable to the case, is disregarded on the trial .of a person charged with crime, where its enforcement would tend to preserve his right to an impartial trial, he is to be regarded as prejudiced in his substantial rights, as he is always to be deemed so prejudiced where he is deprived of a constitutional guaranty designed for the protection of the person — still, if there has been a failure to observe some mere matter of form, where the officer or other person charged with the duty acted in good faith, the court must determine whether the failure to observe such form tended in any way to deprive the accused of a fair trial, and whether, looking to the statutory provisions relating to criminal procedure, it was intended that such failure should necessarily require a reversal of the judgment.”

But in this case the jurors, by virtue of the statute, might properly be permitted to separate before the evidence and arguments had been concluded, and this permission of the statute is on the assumption that such a separation will not naturally work prejudice. If this be true, how can it be affirmed that a separation at the conclusion of the charge, the jurors being instructed that they had not yet received the case finally, as they in fact had not, and being carefully cautioned, would naturally work prejudice to the defendant? We think the assumption unwarranted. The situation would be essentially different if *992that body had entered upon its deliberations, and there is manifestly strong reason for the statutory requirement that during deliberation they be kept together.

Affidavits of the jurors were given in evidence all showing that they had obeyed the court’s caution, and tending to rebut any presumption of prejudice. "We do not regard this evidence as relevant, there being no issue as to prejudice, although it is somewhat comforting. ■

In the days when courts were prompted, because of the rigidity of the criminal law, to look for technicalities in order to protect human rights, it was natural perhaps to give strained construction to language in order to secure that object. But in this enlightened day there is no occasion for unnatural scrutiny. A reasonable construction of language we think more in consonance with the spirit of our law.

It is our conclusion that, giving fair construction to the statute, the evidence shows that the case was not finally submitted until the return of the jury at 1 p. m., and the indictment, written 'charge, and other papers then delivered.

The judgment of the circuit court will, therefore, be reversed and that of the .common pleas affirmed.