41 So. 631 | Ala. | 1906
In all criminal cases, whether of felony or misdemeanor, the right of polling the jury is secured to either party. It is a right, however, like the right of trial by jury, which may be waived by the prisoner in case of misdemeanor. — Brown v. State, 63 Ala. 97. Tli return of a verdict in the absence of the defendant and a dispersion of the jury is irregular, and would operate as a reversal of the case, unless it was a misdemeanor and it appeal ed that the defendant had consented to such a return. — Jones v. State, 97 Ala. 77, 12 South. 274, 38 Am. St. Rep. 150; Wells v. State, 147 Ala. 41 South. 630. If the verdict is not received and recorded, it would not result in an acquittal'of the defendant, and the unauthorized dispersion of the jury would be good ground for a new trial and for a reversal by this court when the point is properly reserved. — Jones’ Case, supra; Hayes v. State, 107 Ala. 1, 18 18 South. 172.
In the case at bar, the verdict was not received and accepted or recorded by the court, and did not work an acquittal ; but, as the jury had dispersed before returning the verdict that was received, said verdict would not support a valid judgment of conviction, and the trial court erred in rendering judgment thereon over the objection of the defendant. The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.