Swor v. State ( 1902 )

Calhoon, J.,

delivered the opinion of the court.

Appellant was tried for murder and properly convicted. He made a motion for a new trial, one ground of which — and the only one, as we think, deserving consideration — is in these words : ‘£ When the verdict against him was received and read by the clerk, defendant demanded that the jury be polled individually. The record could not be found from which to poll the jury. Then the court proceeded to poll each member of the jury by asking him his initials. When' the polling was completed the defendant was ushered from the presence of the court,' and the district attorney allowed to insert and correct the initials of the jury, in the absence of the defendant, before the jury was discharged.” A careful reading of the examination and cross-examination of the witnesses produced for and against the motion leads us to the conclusion that the actual occurrences were these : The verdict was delivered to the deputy clerk, and read by him. Defendant then demanded a poll. The judge called for the jury list from which to make the poll. It was at night, and this list was below stairs, in the office of the clerk, who was at home, and had the key to the desk in which it was locked. Thereupon the court addressed each member of the jury, asking his name when the judge did not know it, and propounded to each the question, £ £ Is that your verdict ? ” to which each answered that it was. Then the jury was discharged as to that trial, but the members of it requested to remain to furnish the deputy clerk with their initial names for appearance on the minutes. At this point the prisoner was taken to jail, and, in his absence, the initials of the names of the jnrors were taken. We see in this no violation of the right of the prisoner to be present at every stage of the trial. The jury was polled, and it was not necessary to read the polls from the clerk’s list. The fact that the panel remained by request, for convenience, to give initials was on part of the trial. The deputy clerk might have gotten these from the list below stairs, or- from the panel outside the court room, to make up his minutes. There is no pretense that the actual jury trying the case was hot in fact polled.

Affirmed.