The opinion of the court was delivered by: Moss, Justice.
The appellant, Reed Loftis, was tried and convicted at the February 1957 term of General Sessions Court for Anderson County, South Carolina, before the Honorable J. Henry Johnson, presiding Judge, upon an indictment charging him with assault and battery of a high and aggravated nature.
While the jury was deliberating, and after the case had been submitted to them, the trial Judge, in the absence of the jury, instructed the bailiffs to take the jurors to lunch. They proceeded to escort the jury to a restaurant about a block from the courthouse and when they arrived at the restaurant it was discovered that one of the jurors was missing. The juror was located at his home and in response to instructions by one of the bailiffs he returned to the jury room in the courthouse. A son of one of the bailiffs went to the jury room and told the juror to join the other members of the jury at the restaurant. This son accompanied the juror from the courthouse to the restaurant. This juror was separated from the other jurors for a period of thirty minutes to one hour. It appears that after the jury had finished the meal that they returned to the jury room, and after additional deliberation and a further charge by the court, the appellant was found guilty.
Immediately upon learning of the separation of the juror in question, the appellant, through his counsel, informed the court of the happening and made a motion for a new trial, upon the ground that one of the jurors had separated himself from the jury after the case had been submitted to it, and while the jury was deliberating on the case.
It appears from the affidavits of the bailiffs and from the testimony of one of the bailiffs that when the court directed that the jury be taken out to lunch, he announced such to the jury, but that when they arrived at the restaurant one of the jurors was missing. It further appears that one of the bailiffs called the juror by telephone, at his home, and told him to rejoin the other jurors. It also appears that the son of one of the bailiffs had accompanied his father to the restaurant and that this son went back to the courthouse and found the juror in the jury room. He instructed the juror to join the other jurors at the restaurant and accompanied him from the courthouse to the restaurant.
The juror in question was sworn and testified as follows:
"Q. You didn't understand that you were to get dinner on the County? A. No, sir."
And again from his testimony:
"Q. Well, how did you get away this time? A. I thought all the rest went home to dinner.
"Q. Were you the last to come out of the jury room? A. Yes, sir."
And again from the juror's testimony we quote the following:
"Q. Mr. Holcombe, I understand when the bailiffs were taking the jury to dinner that you left the jury — where did you go? A. I got in my car and went home.
"Q. Did you talk to anybody before you got ...