Mann v. Martin, Adm'r, &c. sheriff shall not be bound to keep it, or deliver it to the plaintiff, unless he shall, within two days after the delivery to him or to his agent or attorney, by the sheriff, of a copy of the affidavit, indemnify the sheriff against the claim by bond executed by one or more sureties, in double the value of the property. No claim to such property by any other person than the defendant or his agent shall be valid against the sheriff unless so made. He shall return the affidavit of the claimant, with his proceedings thereon, to the clerk's office." This view is, we think, erroneous, for the reason that the section quoted applies only to property in the possession of the defendant in the order or writ. The evidence tended to establish the fact that at least a portion of the property in controversy belonged to appellant in her own right, and that she, and not the defendant W. B. Mann, was in actual possession thereof at the time of the seizure. To that extent the section quoted does not apply. One owning and in possession of personal property is not required to give any notice to the sheriff as to the right of possession. It would be an idle and useless formality. If he takes under such circumstances, he does it at his own peril. Section 216 of the Civil Code of New York, which is in substance the same as section 218 of Myers's Code, has been frequently construed as indicated here. (King v. Osser, 4 Duer; Shipman v. Clark, 4 Denio; Foster v. Pettibone, 20 Barb.) The question of the ownership of the property in controversy should have been submitted to the jury under proper instructions. Wherefore the judgment is reversed, and cause remanded with directions for further proceedings consistent with this opinion. Temple v. Commonwealth. 14bu769 j118 17 CASE 52-INDICTMENT-MAY 10. Temple v. Commonwealth. APPEAL FROM ALLEN CRIMINAL COURT. 1. THE PRISONER MUST BE PRESENT WHEN THE JURY RETURN THEIR VERDICT, and, if he desires to do so, he has a right, by polling the jury, to demand, face to face, of each juror whether the verdict is his verdict, and to object to it unless each member of the jury shall answer for himself that the verdict is his. The prisoner in this case was indicted and tried for murder; the case was given to the jury about sunset, and the court adjourned for the day. The prisoner was placed in jail, and his counsel retired to their rooms in the town. After dark the jury reported to the judge that they had agreed upon a verdict. The judge went to the court-room, and, without causing the prisoner to be brought in, and in the absence of his counsel, and without notice to them, the verdict, finding the prisoner guilty of manslaughter and fixing his punishment at six years and four months' confinement in the penitentiary, was received and the jury discharged. Held, that THE COURT ERRED IN RECEIVING THE VERDICT IN THE ABSENCE OF THE PRISONER, and for this error the judgment of conviction is reversed. LESLIE & BOTTS FOR APPELLANT. THOS. E. MOSS, ATTORNEY-GENERAL, FOR APPELLEE. (Briefs have been misplaced.) JUDGE COFER DELIVERED THE OPINION OF THE COURT. The appellant was indicted and tried for the murder of Robert Moore, and found guilty of the crime of manslaughter, and adjudged to be confined in the penitentiary for a period of six years and four months. From that judgment he prosecutes this appeal. We perceive no objection to the instructions given to the jury by the court. They presented, with more than ordinary brevity and perspicuity, the law of murder, manslaughter, and self-defense, and are free from subtile definitions which VOL. XIV.-50 Temple v. Commonwealth. too frequently tend to mislead and confuse rather than to enlighten the jury. The instructions asked by the appellant and refused by the court, as far as they were correct, were embraced in those already given, and it was not only unnecessary but would have been improper to repeat them. One of the grounds for a new trial was, that the verdict was received in the absence of the appellant and his counsel from the court-room. It appears from the bill of exceptions that the case was given to the jury about sunset, and the court adjourned for the day. The appellant was placed in jail, and his counsel retired to their rooms in the town. After dark the jury reported to the judge that they had agreed upon a verdict. The judge went to the court-room, and without causing the appellant to be brought in, and in the absence of his counsel, and without notice to them, the verdict was received and the jury discharged. The Code provides that "While the jury are absent, the court may adjourn from time to time as to other business, but it shall be deemed open for every purpose connected with the cause submitted to the jury, until a verdict is rendered or the jury discharged." (Section 253.) There was therefore no impropriety in receiving the verdict at the time stated. But whether it was not improper to receive it without notice to appellant's attorneys, and without affording them reasonable opportunity to be present, and especially without the presence of the appellant, is a very different and much more important question. The bill of rights declares "That in all criminal prosecutions the accused hath a right to be heard by himself and counsel." The right to be heard by himself and counsel necessarily embraces the right to be present himself and to have a reasonable Temple v. Commonwealth. opportunity to have his counsel present also at every step in the progress of the trial, and to deprive him of this right is a violation of that provision of the fundamental law just quoted. The presence of the accused is not a mere form. It is of the very essence of a criminal trial not only that the accused shall be brought face to face with the witnesses against him, but also with his triers. He has a right to be present not only that he may see that nothing is done or omitted which tends to his prejudice, but to have the benefit of whatever influence his presence may exert in his favor. And at no time in the whole course of the trial is this right more valuable than at the final step when the jury are to pronounce that decision which is to restore him to the liberty of a citizen, or to consign him to the scaffold or to a felon's cell in the state prison. He has a right not only to see and know that the whole jury is present assenting to the verdict, but by polling to demand face to face of each juror whether the verdict is his verdict, and to object to it unless each member of the jury shall answer for himself that the verdict is his. The right to poll the jury in criminal causes has in this state always been deemed an essential part of the right of trial by jury. It is guaranteed by both the constitution and the statute, and ought to be maintained and preserved by the courts as essential to the protection of the rights of the citizen. The error in receiving the verdict during the enforced absence of the appellant is not of the same class with those errors this court refused to consider in Kennedy v. Commonwealth, ante p. 340, and Frazier v. Commonwealth, MS. opinion, September Term, 1878. The errors complained of in those cases, if committed at all, were committed in overruling the motion for a new trial. Until then the court had not passed upon the questions or been called upon to do so, and was ignorant of the alleged facts which were complained of as depriving the accused of the 14bu772 f136 462 Gilmore v. Green. benefit of a fair trial. In this case the error was committed during the progress of the trial. The court knew the appellant was in custody, and it was the duty of the court to have him present when the verdict was received, and, in view of the time and circumstances, to have caused notice to be given to his counsel that they might have an opportunity to be present. Wherefore the judgment is reversed, and the cause remanded for further proper proceedings. CASE 53-PETITION-MAY 15. Gilmore v. Green. APPEAL FROM BOONE CIRCUIT COURT. 1. THE LIABILITY OF AN ASSIGNOR OF A PROMISSORY NOTE, implied by 3. UNLESS THE NEW PROMISE IS MADE UPON SOME CONSIDERATION it 4. WHETHER THE PERIOD OF LIMITATION IS FIVE OR FIFTEEN YEARS depends upon the question whether the liability, which is the foundation of the action, is evidenced by writing or not, and can not be affected by a new promise not the foundation of the action whether verbal or in writing. 5. WHEN A NEW PROMISE IS MADE BEFORE THE STATUTE HAS BARRED AN ACTION ON THE ORIGINAL LIABILITY, no action can be maintained on such new promise, unless it was intended by the parties to take the place of the original liability, and to discharge the debtor from liability thereon. |