Tbe plaintiff in error was indicted in tbe Ontario Oyer and Terminer for grand larceny. Tbe indictment was sent for trial to tbe Sessions of that county, and tbe case came on for trial at a term of that court beld in June last. After tbe charge by tbe court, tbe jury retired to consider tbeir verdict and tbe county judge commenced tbe trial of a civil cause. Tbe justices of Sessions, wbo were members of tbe court during tbe trial, left tbe court room, one of tbem going into tbe ball on tbe lower floor of tbe courthouse, and tbe other went into tbe street. While the justices were absent from tbe court room, tbe jury came in and announced that they bad agreed on a verdict. The county judge in tbe absence of tbe justices of Sessions received tbe verdict. Tbe jury was polled at tbe request of tbe counsel for tbe plaintiff in error, and *267the verdict of guilty was entered by the clerk. Subsequently the plaintiff’s counsel made a motion in arrest of judgment, upon the ground that the verdict was improperly received and entered, and upon other grounds not deemed material to be "considered on this writ of error. The motion was denied and the prisoner sentenced to imprisonment in the Monroe penitentiary for one year.
The rule is too well settled to be departed from or modified that a verdict must be delivered in. open court. It cannot be received privately nor by the clerk or other person in the absence of the court, not even by agreement of counsel. (1 Chitty’s Or. L., 636.) To permit verdicts to be received otherwise than in open court, would lead to the greatest abuses. The people or the prisoner might be grossly wronged without any means of redress, or the administration of the law brought into contempt or subjected to suspicion.
The Court of Appeals in Blend v. The People (41 N. Y., 604,) decided that the conviction' of the plaintiff in error should be reversed, because one of the justices of Sessions left the bench during the trial, and the county judge appointed another justice of the peace to fill his place, and the trial proceeded before the court thus organized. The learned judge who delivered the opinion of the court, says, when Elwood abandoned the trial the court was disorganized so far as this trial was concerned. This is not the case when members of the court leave the bench for a few moments intending to return, and do return, but is a total abandonment of the trial in consequence of which one-third of the court is changed.
In the case of The People v. Dohring (59 N. Y., 374), it was held that a Court of Sessions was not disorganized because one of the justices of Sessions left the bench during the trial, went on to the witness stand and was examined as a witness in the cause. Eolger, J., assigns as a reason why the irregularity of the justice leaving the bench and being examined as a witness, did not disorganize the court: “ That the justice did not leave the court room while the trial was progressing; he did not abandon the trial; he left the bench for a space, intending soon to return to it, and did return.” The ruling in the case last cited followed that in Tuttle v. The People (36 N. Y., 431), The People v. Reagle (60 Barb., 527).
The case now in hand does not come within the principles laid *268down in the last two cases cited. In this case the justices of Sessions left, not the court room only, but one of them left the court house. When the verdict was received the court was held by the county judge only, and he cannot, under the Constitution, hold a Court of Sessions. The conviction was, therefore, illegal and must be reversed. The case of The People v. Shaw (63 N. Y., 36) is directly in point and decisive of the case. It was suggested by the district attorney on the argument, that the plaintiff in error lost the right to insist upon the defective organization of the court when the verdict was received, because her counsel did not object at the time of the reception of the verdict, on the ground that there was not a court authorized to receive it. I do not supj>ose it would be seriously urged that the plaintiff has lost her right to' insist upon the objection to the organization of the court, if the county judge had alone proceeded to try her for the crime alleged in the indictment. It would be no more a court than, if it was held by any respectable gentleman in Ontario county. Silence does not confer jurisdiction over the subject-matter in .a civil or criminal action or proceeding. Receiving the verdict was one, if not the most important of the proceedings during the trial. It must be received by the court before which the trial was had, and if not the verdict is a nullity, and not authority for the sentence. The conviction must be reversed and a new trial had in the Ontario Sessions, to which court the proceedings are remitted. The question can be there considered whether the former trial prevents a second one.
The district attorney has not considered it on his points, and we cannot consider it without he has an opportunity to be heard.
Present — Mmlltn, P. J., Talcott and Smith, JJ.Conviction reversed and new trial granted in Ontario Sessions, to which proceedings are remitted.