The opinion
ANDERSON, J.
In all criminal cases the verdict of the jury must be rendered in open court and in the presence of the accused. In cases of felony the prisoner must be personally present when the jury return their verdict, and to support a conviction the record must affirmatively declare his presence. — Hughes’ case, 2 Ala. 102 , 36 Am. Dec. 411 ; Eliza's Case, 39 Ala. 693 ; Waller’s Case, 40 Ala. 326 . And in a case of felony it is error to allow the verdict to- be received by the clerk during a recess of the court in the absence of the prisoner, even though this be done with the consent of his counsel.— Waller’s Case, supra. It would seem that when the verdict, has been received in the. absence of the defendant, and the jury is discharged, it is the equivalent of an ac quittal. — Hayes v. State, 107 Ala. 1 , 18 South. 172 ; Ned v. State, 7 Port. 187 ; Cook v. State, 60 Ala. 39 , 31 Am. Rep. 31 . The action of the court in reconvening the jury after the defendant appeared in court and after they had dispersed, but before having the verdict read, did not cure the error.
*143 The foregoing rule relates to the trials of misdemeanors, as well as felonies, except the defendant may waive the right to be present when the verdict is returned and other formalities connected with the return and reception thereof in misdemeanor cases. — Brown v. State. 63 Ala. 97 . But in the case at bar the record affirmatively shows that the defendant did not consent to an informal return and reception of the verdict, and as the verdict was illegally received, it operated as a discharge of the defendant. The judgment of the county court is reversed and one is here rendered discharging the defendant.
: Reversed and rendered.
Weakley, G. J., and Dowdell and Denson, JJ,, concur.