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upon the horse's hind legs; and the fact remains undisputed that about the 15th of September he took the horse back and left it there, and did not again take possession of the horse."

It is urged that this statement is an encroachment on the province of the jury upon a point where there was a conflict of evidence. There was no conflict upon the question of his taking the horse back September 15th, leaving her there, and not again taking possession. There was a conflict as to when plaintiff first complained to defendant of the bunches. The plaintiff testified directly and positively that he took the horse to defendant at differ. ent times, and made complaint. Defendant admits that the horse was at his stable at different times between July 2d and September 15th, but contends that plaintiff made no complaint. The statement of the judge was true, and the only error was that he did not say to the jury that the defendant denied these complaints. This, however, is not the error complained of. It is entirely proper for a court to tell the jury what the theory of each party is, and that his evidence tends to support it, and it is for them to examine the evidence, and determine what the facts are upon which their verdict must be based.

4. The court said to the jury that there were but two questions for them to decide. (1) Did the defendant, at the time of the sale of the mare, warrant her to be sound? And (2) if such warranty was made, was she sound at that time? It is now insisted that there was another question for the jury to pass upon, viz., whether the agreement that the defendant should keep and care for the horse while she was being treated, and that the plaintiff should pay the surgeon's bill, was not a settlement of any defect in the warranty. It does not appear that this question was raised upon the trial, or the attention of the court called to it. The point, therefore, cannot be considered in this court.

5. The court said to the jury that plaintiff stated in

107 MICH.-9

his letter of November 21st "that he would not take the horse, as he considered that there had been a breach of the warranty." We think this is the correct construction to be placed upon the letter.

6. It is next insisted that the court erred in charging the jury that "there is no evidence in this case that the unsoundness of the horse originated from any other cause than the defects upon the hind legs of the animal." Counsel have not pointed us to any testimony in the record upon which they rely to controvert this statement of the court. It was the duty of counsel in their brief to point out such testimony, if there was any.

The judgment is affirmed.

The other Justices concurred.

FREY v. CALHOUN CIRCUIT JUDGE.

CRIMINAL LAW-TRIAL FOR FELONY-VERDICT-VOLUNTARY ABSENCE OF ACCUSED.

Where one on trial for a felony, who is out on bail, fails to appear at the hour to which court has adjourned pending the deliberations of the jury, a verdict rendered in his absence is valid, notwithstanding the provision of 2 How. Stat. § 9568, that no person indicted for a felony shall be tried unless personally present during the trial.

Mandamus by Oren J. Frey against Clement Smith, circuit judge of Calhoun county, to compel the entry of a judgment of acquittal in a criminal case against relator. Submitted November 5, 1895. Denied November 19, 1895.

Hulbert & Mechem, for relator.

0. S. Clark, Prosecuting Attorney, for respondent.

MCGRATH, C. J. Relator was on trial under 2 How. Stat. § 9093. After the jury had retired, the court adjourned until the next morning at 8 o'clock. When the court reconvened, the jury reported that they had agreed upon a verdict. They were admitted, rendered a verdict of guilty, and were discharged. Within a few minutes, the respondent, who was out on bail, came into court, and the fact of his absence at the time of the rendition of the verdict was then made known to the court. The jury had separated, but, after not less than half an hour and not more than three-quarters of an hour had elapsed, the jury were called together, and again announced their verdict in the presence of the respondent, and were polled by the clerk. Counsel for the prisoner afterwards moved the court for respondent's discharge, and this is an application for a mandamus to compel the court to make such an order.

Relator's contention is that he was on trial for a felony; that the statute (2 How. Stat. § 9568) provides that no person indicted for a felony shall be tried unless personally present during the trial; that the trial includes the receipt and record of the verdict; that the first verdict was rendered in his absence; that the second verdict was rendered after the jury had separated; and that he has been once in jeopardy, and is therefore entitled to his discharge.

The general rule is that a trial for a felony cannot be had without the personal presence of the accused. We have a statute which recognizes and embodies this rule. 2 How. Stat. § 9568. It is also well settled that the trial is not concluded until the verdict is received and recorded. There are cases which hold that a verdict rendered in the absence of the prisoner, whether he be in custody or out on bail, is void. State v. Hurlbut, 1 Root, 90; Clark v. State, 4 Humph. 254; Sneed v. State, 5 Ark. 431. Few cases will be found which go to this extent, and, in nearly all of the cases where a verdict rendered in the absence of the accused has been held erroneous, the respondent has

been in custody, and has therefore been prevented from attending. When, however, the absence of the prisoner is not an enforced absence, but is voluntary, as when he is out on bail, and has been present during the trial, but voluntarily leaves the court room pending the deliberations of the jury, or neglects to appear at the adjourned hour of the court, the clear weight of authority favors the rule that a verdict rendered under such circumstances is valid and binding. In Arkansas a statute enacted since the decision of Sneed v. State, supra, Brown v. State, 24 Ark. 620, and Osborn v. State, Id. 629, provides that, if defendant escapes from custody pending the trial, or, if on bail, he shall absent himself, the trial may either be stopped or progress to a verdict, at the discretion of the prosecuting attorney. The constitutionality of this statute was upheld in Gore v. State, 52 Ark. 285. In Hill v. State, 17 Wis. 697, it was held that the burden was upon the prisoner to show 'that he was deprived of the right to be present. In Wilson v. State, 2 Ohio St. 319, it was held that when defendant is on bail it is not error to receive a verdict in his voluntary absence. In Fight v. State, 7 Ohio, 181, respondent, being on bail, had absconded during the trial, and it was held proper to proceed with the trial. In Rose v. State, 20 Ohio, 31, the prisoner was in custody, and it was held that a verdict received in his absence should have been set aside. In Sahlinger v. People, 102 Ill. 241, it was held that, where a prisoner, pending the trial, voluntarily abandons the court room, he will be regarded as having waived a right which is guaranteed to him, and the court may proceed in his absence. In Price v. State, 36 Miss. 531, it was held that, where defendant voluntarily absents himself, he cannot complain. In Finch v. State, 53 Miss. 363, respondent was in custody.

In Barton v. State, 67 Ga. 653, the court say the presence of the defendant is necessary for himself mainly in order to exercise his right to poll the jury.

"Any arrangement he had made with a private person to let him know when the jury would be ready to deliver the verdict, and the failure of such person to comply with his promise, cannot affect the point. It was his duty and obligation in his. bond, as well as his right, to be present until the close of his trial,-the rendition of the verdict; and, being free, it was for him to provide so as to be present."

The court distinguishes that case from former decisions, where respondent was in custody at the time of the rendition of the verdict.

In Lynch v. Com., 88 Pa. St. 189, defendant was on bail, and left the court room while the jury were out, and in his absence the jury came in and rendered the verdict. Held to be no ground for a motion in arrest of judgment.

The New York cases called to our attention do not determine the question here presented. In People v. Perkins,. 1 Wend. 91, the prisoner was in custody. In Maurer v. People, 43 N. Y. 1, the jury returned into the court at midnight, and, in the absence of the prisoner, asked certain questions, to which the court replied. It does not appear. from the reported case whether the prisoner was at liberty or not. In Mills v. Com., 7 Leigh, 751, the verdict was defective, in that the jury had not fixed the term of imprisonment, and the court undertook to supply the omission after the discharge and separation of the jury. State v. Alman, 64 N. C. 364, involved the right of the court to discharge the jury, which had failed to agree, in the absence of the accused.

In the recent case of Com. v. McCarthy, 163 Mass. 458, the question has been fully considered, and the rule adopted that, when a defendant on trial for felony, who is on bail, voluntarily absents himself without leave when the jury retire for deliberation, and remains absent, a verdict rendered in his absence will be binding. In the present case, the court having adjourned until the next morning, the respondent was justified in assuming that nothing would be done until that time; but he was bound to take

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