¶1 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 had agreed upon a *284 verdict, and they had made the same response as that given to the Judge at his room on the 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.
¶2 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 t’he prisoners.
¶3 Wo think the case of the State v. Creighton 6 Ire. 104, and the case of the State v. Blackwelder, Phillips Law 38, and .particularly the last, aie decisive of this case.
¶4 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 couit, and in the presence of the prisoner.
¶5 There is error.
¶6 Per Curiam. Venire de novo.