Opinion by
Hewitt, Chief Justice.*189This case comes up from the First District on writ of error. It appears by the record that at the April term of the United States District Court for the First District, held at Walla Walla, in and for said District, an indictment was found against the plaintiff in error for murder in the first degree.
At the same term the cause came on to be heard, and resulted in a verdict of guilty as charged in the indictment, followed by sentence. A motion is made by defendant’s counsel for a new trial, which was overruled by the Court, to which ruling exception is taken and allowed. Plaintiff prosecutes his writ of error to this Court, and assigns numerous causes of error, only two of which are deemed material, and which must control in the decision of this case. We will therefore discuss them without reference to the others. They are as follows:
1. The record does not show that the prisoner was present in Gourt when the verdict of the jury was rendered,
2. The Court adjourned from one day to the next, and the record does not show what disposition was made of the jury.
The'homicide was committed on an Indian reservation, consequently the case was tried on the United States side of the Court, and according to the rules and regulations of the common law, which are so plain and concise in regard to the two propositions under consideration, that there is little ground for argument.
In discussing these two questions, we will state as a broad proposition, that so carefully has the law guarded the sanctuary of human life, that in all capital felonies, no presumption can be made in favor of the regularity of the proceedings. It must be shown by the record that the prisoner was duly and legally convicted. Leading criminal cases (Bennett & Heard), vol. 2, page 449, and notes; 1st Parker’s Crim. reports, page 474, 476; 5 Sergeant and Rawle, page 315; 3d Sergeant and Rawle, page 237; 3d Gillman, page 71.
The record must also show that the prisoner in a capital case was present in Court during the trial, when the verdict was rendered, and when sentence was passed. Wharton’s Digest, vol. 1, page 521, Secs. 759 and 872.
*190And when the record shows that “the Court sentence D. G., the defendant, to be taken to the jail from whence you came,” etc., etc., the Supreme Court of Pensylvania say it cannot be presumed that the prisoner was in Court. Wharton’s Digest, page 521, Sec. 771.
In regard to the second proposition, the record must show in capital cases, where the jury have been sworn and the Court adjourns from one day to the next, that the jury have been legally disposed of during the adjournment. United States Digest, vol 2, page 694.
In the case under consideration, the record shows that the prisoner was in Court at the commencement of the trial, and although it shows that the Court adjourned from one day to the next, nothing is said about the prisoner until the jury render their verdict, when it appears that the “ Court remanded the prisoner to the custody of the Marshal;” from which entry, as already shown, we cannot presume the prisoner was present in Court at that time. It also shows that the Court adjourned from one day to the next while the trial was in progress, but is silent as to what disposition was made of the jury.
We think, therefore, that the Court erred in overruling the motion for a new trial.
Judgment of the Court below reversed, and a new trial granted the prisoner.