After receiving the instructions from the court, the jury shall retire for deliberation and an officer shall be sworn to keep them together for deliberation in some private and convenient place, and, during such deliberation not to permit any person to speak to or communicate with them, nor to do so himself, unless by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court. The court shall fix the time and place for deliberation. The jurors shall not deliberate on the case except under such circumstances. If the jurors are permitted by the court to separate, the court shall properly admonish them. When the jury is composed of both men and women and the jurors are not permitted by the court to separate, in the event that it shall become necessary to retire for the night, the women must be kept in a room or rooms separate and apart from the men.
COL120106 VERDICT OR F INDING NOTE: Section 105.10 is new. However, it continues the former practice and is substantially the same as § 1128 of the California Penal Code. See generally B. Witkin, California Criminal Procedure Judgment and Attack in Trial Court §§ 517, 522 (1963, Supp. 1973); 8 Moore, Federal Practice &31.06 (1974). It should be noted that only during deliberations of the jury, does § 105.10 (and California § 1128) require the jury to be kept together. See also § 90.40 (custody and separation of jury). The federal rules are silent on the matter, although Moore indicates that the general practice is to separate before submission (for reasons of economy) and to sequester the jury after submission whether they are actually deliberating or not. In short, under federal law, as provided here, the matter is left to the court's discretion and error results from separation after submission only if prejudice is shown.