¶1 The rule is, that in a criminal trial, nothing shall be done to the prejudice of the defendant, without hi& presence.
¶2 The exception is, that in a criminal trial for a misdemeanor„ the rule may be relaxed, by the consent of the defendant. *56 An- instance of such exception has been, where the Court bakes a recess, the jury, m'ay render its verdict to the Clerk, it having been agreed before the recess by the defendant in the presence of the Court, that so it might be and the Court Raving so instructed the Clerk.
¶3 But even this exception, or the like, ought to be sparingly •exercised; because it best comports with decency and order, that everything should be done in open Court, in the presence of the defendant and before the public.
¶4 In the case before us, the verdict was rendered to the ■Clerk during the recess of the Court, without instruction from the Court, and in the absence of the defendant and without his consent.
¶5 It was clearly the right ot the defendant to have the verdict set aside upon his motion. And it was -within the power of the Court to set it aside mero motu.
¶6 There is no error. Let this be certified, &c.
¶7 PeR OüRIÁm. Judgment affirmed.