Dissenting Opinion.
Pociié, J.I cannot assent to that part of the opinion which justifies the conduct of the District Judge in directing the jury to retire for the purpose of correcting the first verdict which they had found and returned in this case-
in my opinion the question, “ Gentlemen of the Jury, did you find that the accused had inflicted no wound on the woman alleged to have been out ?v was suggestive of the opinion of the Judge that the jury had made an error on the facts of the case, and was manifestly calculated to influence them in receding from their finding. It was evidently an expression of surprise at the verdict, which was predicated on the belief that no *57wounds had been inflicted, and it had the unavoidable effect of drawiug from the foreman of the jury the declaration that they intended to find the accused guilty of the next highest grade of offense after that charged in the indictment.
Under our law, the trial Judge is expressly forbidden from using any expression tending to influence the decision of the jury ou the facts. R. S., Section 1963.
The second verdict returned by the jury'was the direct result of the Judge’s question and actions iu this connection. The first verdict of the jury was responsive to the charge, was not informal and presented none of the features which could justify the interference of the Judge with a view to its correction.
The bill of exceptions taken to the proceedings at this' stage of .the trial, shows that after the above recited declaration of tbe foreman of tbe jury, tbe Judge directed tbe clerk to poll tbe jury for the purpose of ascertaining their intention, and the jurors in open court were required to answer by stating when called whether this was their intention, as declared by tlieir foreman.
Such a proceeding was grossly irregular and presents the novel spectacle of a petit jury deliberating in the jury box, in open court, with the assistance of the Judge and of his clerk. I venture the assertion that no authority can be found in support of such a proceeding.
For those reasons I dissent from the decree rendered in this case and I think that the accused was entitled to a new trial.
Justice Todd'concurs in this opinion.