{dissenting), — It appears from the certified statement of facts in this case that the jury were told by the court, after the testimony was closed and the cause was finally submitted to them, that they might, in case they agreed upon a verdict during the night, seal the same, and. deliver it to their foreman and bring it into court on the following morning, which the jury accordingly did. The record fails to show that the defendant consented to this proceeding, and I am of the opinion that without his consent, which should affirmatively appear of record, the jury should not have been permitted thus to separate. The contrary was the practice at common law, and the only change made by our statute is that permitting the jury to separate by consent of the defendant and the prosecuting attorney during the trial. Bee Code, § 1089. Section 1102 of the Code provides that a when the jury have agreed upon their verdict they must be conducted into court by the officer having them in charge. Their names must then be called, and, if all appear, their verdict must be rendered in open court] and, if all do not appear, the rest must be discharged without giving a verdict, and the cause must be tried again at the same or next term.” This language, it seems to me, clearly implies that the jury must be kept in charge by the officer, and not be permitted to go at large until after the rendition of their verdict in open court. See Proffatt, Jury Trial, § 451.
Upon the other questions involved in the ease I concur in the opinion delivered by Mr. Justice Dunbar.
Scott, J., concurs.