
    Frank Hardy v. The State of Ohio.
    Where, hr a criminal ease, a verdict of guilty, as charged in the indictment, is returned hy the jury, through their foreman, orally, in open court, in proper form, and each juror, in response to the interrogatory of the clerk, says the verdict is his, and it is entered upon the record, the fact that the verdict is not in writing, signed hy the foreman, is not such an irregularity as affects materially any substantial rights of the defendant, and is not ground for a new trial, under section 193 of the code of criminal procedure.
    Error to the court of common pleas of Adams county.
    At the September term, 1869, of the court of common ' pleas of Adams county, Hardy was put upon his trial on an indictment for murder in the first degree. After the conclusion of the testimony, arguments of counsel, and the charge of the court, the jury retired to consult of their verdict, and “ returned into <x>en court, orally, through their foreman, the following verdict, to wit: ‘ We, the jury, find that the defendant, Frank Hardy, is guilty of murder in the first degree, as charged in said indictment; ’ and thereupon, at the request of counsel for the defendant, said jury was polled, and each juror being separately interrogated as provided by law, responded that the verdict so as aforesaid returned, was his verdict; which said verdict was accepted by the court.”
    Hardy moved the court to set aside this verdict and grant him a new trial, because of the irregularity of the verdict in this — that it “ was verbally returned into court and pronounced to the clerk, when, by law, said verdict should have been signed by the foreman of the jury, in writing, and read by the clerk and filed.” This motion was overruled, and exception taken.
    • Hardy was sentenced to be hanged on the second Friday in February, 1870. The execution of the sentence was subsequently suspended to await the result of this writ of error.
    It is claimed on behalf of the plaintiff: in error, that, by virtue of sec. 164 of the code of criminal procedure (66 O. L. 312), the verdict of a jury in a criminal case must be in writing and signed by the foreman, as provided in the 274th section of the civil code.
    On behalf of the State it is claimed that the verdict is in compliance with the spirit of the code of criminal procedure; and that the manner of rendering the verdict is a matter of form merely, and that as none of the substantial rights of the plaintiff in error was thereby affected, he ought not to be allowed to take advantage of it on motion for a new trial, having stood by without objection to the form of the verdict when it was rendered, and having polled the jury.
    
      J. JET. Thompson, J. IE. Wells, and John O. Marshall for plaintiff in error.
    
      F. B.Pond, attorney-general, for the State.
   By the Court :

We are of opinion that the court below did not err in overruling the motion for a new trial. While the manner of returning the verdict may have been irregular, it was not, under the circumstances, such an irregularity as could affect materially any substantial right of the defendant below. (Sec. 192 of the code of criminal procedure.)

Though the verdict was not in wilting, signed by the foreman of the jury, it was announced by him in proper form, and inquiry was made of each juror whether the verdict so returned was his verdict; and each responded that it was, and it was entered upon the record. We are unable to see how the defendant could have been prejudiced or any right of his have been affected by the manner of returning the verdict.

We do not decide how far, if at all, a defendant would, by standing by without objection to the manner of returning a verdict and by polling the jury, waive an irregularity materially affecting his substantial rights, as the matter complained of in this case is not such an irregularity.

The judgment below must be affirmed; and Friday, the 6th day of May next, is fixed for the execution of the sentence  