1. In the case of Malone vs. The State, 49 Georgia, 211, this court held, that the proper time to ask for leave to poll the jury, was after the verdict was read, and we adhere to that ruling. How is the prisoner to know whether lie desires to poll them until he knows what the verdict is ? It may be in his favor. The English practice was for the foreman to render the verdict viva voee. How could a juryman answer until the foreman had spoken ? The court refused to permit the jury to be polled because the demand came too late. This was error. But, it is said the leave to poll rests in the discretion of the court. It might be enough to say, that in this case the judge did not exercise his discretion, and that the prisoner has not, in fact, had even the opinion of the court that it was not wise to permit him to poll the jury. Had the judge not thought the time gone by, maybe he would have allowed it.
2. But we are of the opinion that in criminal cases the privilege of polling a jury is a legal right in the defendant, and does not depend on the discretion of the court. In an experience of thirty years at the bar, I have never known it denied to a prisoner demanding it, and my brethren, one of whom has an experience of nearly fifty years, say the same. And this seems to be the settled rule: 1. Wend., 91; 18 John., 187; 2 Alabama, 102; 2 Hale, P. C., 299, 300. The cases in this court, where the privilege has been said to depend on the discretion of the court, were all civil cases, and the court has distinctly confined the ruling to civil cases: 6 Georgia, 464; 22 Ibid., 431 ; 41 Ibid., 465; 31 Ibid., 661.
Judgment reversed.