
    Wright v. The State.
    
    
      Tuesday, November 2, 1858.
    APPEAL from the Jefferson Circuit Court.
    
      
       This case was decided on the 139th day of the May term, 1858; but was mislaid and could not he found in time to appear in the preceding volume.
    
   Perkins, J.

Indictment against Henry Wright, charging an assault, &c., with intent to murder Dcmiel Lyle. Conviction, and sentence to the state prison.

When the jury were about to retire to deliberate upon their verdict, the Court remarked that there would not likely be an agreement till some time in the night, and if there was no objection, the verdict might be sealed and handed to the clerk. It was 'so returned.

On the meeting of the Court, the following morning, the jury were not all present, and the prisoner and his counsel objected to the verdict being read in the absence of the jury, and made affidavit that they neither of them heard the remark of the Court that the jury might hand a sealed verdict to the clerk.

Supposing it true that there was a consenting on the part of the prisoner, or his counsel, that the jury might seal, their verdict, hand it to the clerk, and separate in the night, we do not think such consent could be construed into 'a waiver of the right to have the verdict opened in the presence of the jury, by the Court, on the following morning. It was not a waiver of the statutory right, on the part of the defendant, of polling the jury, and especially of having them identify the verdict presented for record as that returned by them.

H. W. Harrington, for the appellant.

Per Curiam.— The judgment is reversed. Cause remanded, &c.  