State v. . Bray , 67 N.C. 283 ( 1872 )

Whether the verdict in this case could have been sustained had the jury, on the next morning, in court, the prisoners being present, been asked if they agreed upon a verdict, and they had made the same response as that given to the Judge at his room on the (284) previous evening, it is unnecessary to decide, as the record does not show that either the jury or the prisoners were present when his Honor directed the verdict to be entered.

So that the only question is whether a verdict in a case which is now subject to punishment in the penitentiary can be sustained, when rendered out of court, to the Judge at chambers, in the absence of the prisoners and their counsel, and entered on the record on the next day, in the absence of the jury and the prisoners.

We think that S. v. Creighton, 28 N.C. 104, and S. v. Blackwelder,61 N.C. 38, particularly the last, decisive of this case.

It is true that both of the above cases were capital, but the reasons for the decision in the latter case apply equally to a case like the present; and besides we believe the practice has been uniform to receive such a verdict only in open court, and in the presence of the prisoner.

PER CURIAM. Venire de novo.

Cited: S. v. Jenkins, 84 N.C. 814; S. v. Kelly, 97 N.C. 405, 409.

(285)