
    The State v. John T. Harden.
    Columbia,
    May, 1828.
    Upon the trial of an indictment, the concurrence of the whole jury is necessary to a conviction. And although the signature of the foreman, the promulgation of the verdict, audits entry on the journals of the Court, with the tacit acquiescence of the jury, are the usual evidences of their concurrence, yet such evidence is not conclusive; hut they may be polled to ascertain the fact.
    Tried before Mr. Justice James, at Chester, Fall Term, 1827.
    The defendant was indicted for murder, and at the trial, the jury being unable to agree readily in a verdict, permission was granted them, with the consent of counsel on both sides, to separate, after they should have agreed upon and sealed their verdict; and the Court adjourned. At an early hour the next morning, the verdict was delivered sealed to the Judge, at his Chambers, by the foreman, who stated that the jury had agreed. The verdict, upon being opened in Court, was found to be a verdict of “ guilty,” upon which, the counsel for the defendant moved that the jury be polled, which motion was granted; and the poll being-taken, four of the jurors dissented from the verdict! The counsel for the defendant then moved to set aside the verdict, which motion his Honour, the presiding Judge, refused, without expressing any opinion upon the point of law involved, but with a view to afford an opportunity of obtaining the decision of the Court of Appeals upon it.
    The defendant renewed Ills motion in the Court of Appeals to set aside the verdict, and for a new trial, on the ground that the jury had not concurred in the verdict before they separated.
    Several other grounds were made in the brief, relating to the merits of the trial; but as they were not argued at the bar, or considered by the Court, it is unnecessary to particularize them.
    Eaves and Williams, for the motion.
    Peareson, Solicitor, contra.
   Johnson, J.

delivered the opinion of the Court.

It has never yet been doubted, that the concurrence of the whole jury was necessary to a conviction m the most petty mis-demeanour which falls under their cognizance. The signature foreman, and the tacit acquiescence of the whole body in its promulgation, and the entry of it in the journals of the Court, are the usual evidences of it. But the signature and naked declaration of the foreman has never yet been, and probably never will be regarded as conclusive upon all the rest. It was the privilege, nay the duty of those dissenting, to put the Court in possession of the fact; and whatever may b‘e the legal consequences resulting from it, it is veiy clear that a conviction for one of the most penal offences, founded on the consent of only eight out of twelve jurors, cannot be maintained. On this ground, therefore, the motion for a new trial must be granted. Something was said by the counsel for the prosecution, in relation to the sentence and the grounds of the present motion, and in reference to the particular point before noticed, which would seem to indicate that there were circumstances connected with the trial, which, by some accident or mistake, are not fully developed in the report sent up here. But the counsel for the prisoner have very prudently and wisely declined entering into any compromise or concession, in a case of so much importance to their client; and the only course left for the Court to pursue, is to decide on the facts as they appear before us ; with respect to the legal effects of which, upon the present motion no one entertains a doubt..

Motion granted.  