Dissenting Opinion by
Wyche, Associate Justice.I am constrained to dissent from the opinion rendered by the Chief Justice in this case and will briefly state my reasons.
The reasons for a new trial, as stated by the Chief Justice, are,
1. The record does not show that the prisoner was present in Court 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.
*191In reference to the first ground of error, the Chief Justice says, “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 after 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.
How it is respectfully submitted that the Chief Justice misapprehends what the record does state in this matter. The trial of this cause, as the record shows, consumed two days, the ninth and tenth judicial days, and the following is the record for the tenth judicial day.
“How on this day the trial of this cause resumed, came John J. McGdlvra, Attorney for the United States, and defendant in custody of the Marshal and his attorneys, Langford and Dugan, and the jury heretofore empanneled to try the cause; and after hearing the evidence, arguments of the Counsel and charge of the Court the jury retired in charge of a sworn bailiff to consider upon a verdict, and now the aforesaid jury come into Court and answering to their names return the following verdict, to wit: “ We, the jury, find the defendant guilty, as charged in the indictment" whereupon the Court remanded the prisoner in custody of the Marshal until further order from the Court, and thereupon defendant’s attorneys gave notice of a motion for a new trial and in arrest of judgment."
While it may be true that the law requires, in capital cases, the prisoner’s presence upon the rendition of the verdict, this presence may be shown either by a positive averment in the record, or it may be shown from the record by reasonable implication and fair intendment. State vs. Croton, 6 Iredell 164; West vs. State, 2, New Jersey 212; Leschi vs. Territory of Washington, W. T. Repts. 23.
In this case, while the record shows that the Court adjourned from one day to the next, it is a misstatement of the record to say “that nothing is said about the prisoner until *192after the jury render their verdict,” as the record states the defendant comes into Court in custody.of the Marshal, and there is no adjournment of the Court till a return of the verdict and no disposition made of the prisoner after the record brings him into Court, until after the reception of the verdict, he is remanded to the custody of the Marshal. It would seem therefore that the prisoner is clearly shown as the record brings him into Court, and fixes him there until after the rendition of the verdict. But if it be said upon a hypercritical construction of the record, the prisoner’s presence is not positively stated, it is certainly gathered by reasonable implication, and fair inténdment which is all the law requires.
It is true, as stated in the opinion of the Court, that on the adjournment of the Court from one day to the next, the record does not show what disposition was made of the jury and yet the silence of the record, on this point, is believed tó be no sufficient ground for a new trial. In the silence of the record we cannot say whether the jury were kept together or were permitted to separate. The keeping of them together was surely no ground for a new trial, and as the law provides that they may separate by consent of the defendant, and prosecuting attorney, to grant a new trial, we would have to conclude that they were permitted to separate, and to separate without the consent required by law.
The authorities, it is believed, will fully sustain this view, but we can now refer to but few: U. S. Digest, vol. 2, page 694, Secs. 236-248; Wharton’s C. L., pages 897-900: W. T. Statutes 1862-3, page 324, Sec. 225.
Large and grave questions of jurisdiction were raised in the Court below and in this Court, and however the law may be on them, it would seem reasonably clear the prisoner is not entitled to a new trial on the grounds announced by the Court.