The writing the jury delivered to the clerk during the recess of the court, was in no proper sense a verdict. In all cases of felony, the verdict of the jury can be pronounced or rendered only in open court, in the presence of the judge and of the defendant. 1 Bish. Or. Proc., § 1001; State v. Hughes, 2 Ala. 102 ; Waller v. State, 40 Ala. 325 ; Cook v The State, 60 Ala. 39; Jones v. State, 97 Ala. 77 ; Jackson v. State, 102 Ala. 76. The court should not have recognized the writing as of any force. If after their voluntary dispersion, a'nd their reassemblage under the order of the court, the jurors had been remitted to their deliberations, and had returned a verdict into court, it may be, the illegality and irregularity of their conduct would have been only ground for new trial. But this course was not pursued ; the writing was received as a verdict, and the jury discharged. When the jury are sworn and the trial is entered upon; the prisoner is placed in'jeopardy, and the unauthorized discharge of the jury, without a verdict, is the equivalent of an acquittal. — Ned v. The
The judgment must be reversed, and as the discharge of the jury operated au acquittal, that judgment must be here entered.