delivered the opinion of the Court.
*4It has never yet been doubted, that the concurrence of the whole jury was necessary to a conviction m the most petty mis-demeanour which falls under their cognizance. The signature foreman, and the tacit acquiescence of the whole body in its promulgation, and the entry of it in the journals of the Court, are the usual evidences of it. But the signature and naked declaration of the foreman has never yet been, and probably never will be regarded as conclusive upon all the rest. It was the privilege, nay the duty of those dissenting, to put the Court in possession of the fact; and whatever may b‘e the legal consequences resulting from it, it is veiy clear that a conviction for one of the most penal offences, founded on the consent of only eight out of twelve jurors, cannot be maintained. On this ground, therefore, the motion for a new trial must be granted. Something was said by the counsel for the prosecution, in relation to the sentence and the grounds of the present motion, and in reference to the particular point before noticed, which would seem to indicate that there were circumstances connected with the trial, which, by some accident or mistake, are not fully developed in the report sent up here. But the counsel for the prisoner have very prudently and wisely declined entering into any compromise or concession, in a case of so much importance to their client; and the only course left for the Court to pursue, is to decide on the facts as they appear before us ; with respect to the legal effects of which, upon the present motion no one entertains a doubt..
Motion granted.