Page:Federal Reporter, 1st Series, Volume 10.djvu/284

 .272 FEDERAL REPORTER. �dict, to poil the jury. But it seems to be a right which bas grown up as a matter of practice. It was not a right which existed at common law. The court always had the right to poil the jury, and if a differ- ent verdict was rendered from that which was delivered privily to the judge, or which was first rendered in court, the court had autliority to punish those jurors who dissented from the verdict. In some of the states the right of a defendant in a oriminal case to poil the jury is denied. In the federal court in this district the practice bas been not to allow a defendant, as of right, to poil the jury when he bas agreed that a verdict may be signed and sealed by the jurors j»and delivered in court. If this were a question merely of polling the jury, under this practice I should not feel inclined to disturb the sentence of the court. For example, if the jury had been allowed to separate upon the understanding and agreement that they were not again to meet the court, in such case it would seem as though the right to poil the jury had necessarily been waived. But in this case they were required to meet the court when it again convened, and the necessary construction to be given to this is that the jury should be present in court when the verdict was opened. They had formed their verdict and sealed it in the place of their deliberations. They had handed it to the officer to be delivered to the clerk. It was the right of the defendant, under the circumstances, to have the jury present in court when the verdict was opened, in order that they might know that the verdict on which they had agreed and signed was delivered in court to be entered of record. In states where the jur}' is not per- mitted to be polled, the practice bas always been to require the jury to be present upon the delivery of a sealed verdict. In the case decided in the federal court in the district of Alabama, (U. S. v. Bridges, 10 Cent. L. J. 7,) where the court refused to allow the jury to be polled, the case shows that the jury were all present when the verdict was opened and read in court. In all cases, it is true, what gives effect to the verdict of the jury is that it is delivered or opened and read in court, and then recorded. It thereby becomes the act of the court. The record in this case does not show that the jury were present when the verdict was opened in court, and as it does not appear that the plaintiff in error waived his right to have the jury present when the sealed verdict was opened, for that reason the sentence and judgment of the district court will be reversed. �The counsel for the plaintiff in error bas also made a motion to diseharge him from the accusation against him in the indictment because he bas once been tried before a jury, and no valid verdict bas ��� �