o both defendants.
When the clerk had entered the verdict, the jury were asked to attend to
it, as it was about to be read by the clerk. The clerk then read the
verdict in the hearing of the jury. The jury, upon being requested, if
any of them disagreed to the verdict to make, it known by a nod, seemed
to express their unanimous assent; and no juror expressed his dissent."
In reviewing the case the Court say: "The error complained of is, that
before the jury had announced their verdict, and in fact after they had
intimated an intention to acquit the defendant, Shule, the Court allowed
the clerk to be directed to enter a verdict finding him guilty, and
after the verdict was so entered, allowed the jury to be asked if any of
them disagreed to the verdict which had been recorded by the clerk. No
juror expressed his dissent; but by a nod which appeared to be made by
each juror, expressed their unanimous assent. The innovation is, that
instead of permitting the jury to give their verdict, the Court allows a
verdict to be entered for them, such as it is to be presumed the Court
thinks they ought to render, and then they are asked if any of them
disagree to it; thus making a verdict for them, unless they are bold
enough to stand out against a plain intimation of the opinion of the
Court." A _venire de novo_ was ordered. The principal difference between
this case and the one under consideration is, that in the latter the
Court directed the clerk to enter the verdict, and in the former he was
allowed to do so, and in the latter the Court denied liberty to the
jurors to dissent from the verdict, and in the former the Court allowed
such dissent.

With what jealous care the right of trial by jury in criminal cases has
been guarded by every English speaking people from the days of King
John, indeed from the days of King Alfred, is known to every lawyer and
to every intelligent layman, and it does not seem to me that such a
limitation of that right as is presented by the proceedings in this
case, can be reconciled either with constitutional provisions, with the
practice of courts, with public sentiment on the subject, or with safety
in the administration of justice. How the question would be regarded by
the highest Court of this State may fairly be gathered from its decision
in the case of _Cancemi, 18 N.Y., 128_, where, on a trial for murder,
one juror, some time after the trial commenced, being necessarily
withdrawn, a stipulation