Rogers vs. Brooks. the decree against the sureties at the time of entering the decree of affirmance against the appellant, it may afterwards be entered nune pro tune. The sureties, having made themselves parties to the suit by entering into the appeal bond, are not entitled to notice before decree against them. White v. Prigmore, 29 Ark., 208. In this case there was a personal decree rendered against Rogers, on the cross claim of Brooks, for $1,356.45, from which he appealed, and entered into a supersedeas bond, with sureties, in which the sureties obligated themselves to pay any decree that might be rendered here against Rogers, not exceeding the amount of the decree of the court below, etc., but the bond erroneously recited the decree to be for $1,583.55. A decree was rendered against Rogers here for $2,022.75, and a decree should have been rendered against his sureties in the appeal bond for $1,356.45, the actual amount of the decree below. But the clerk omitted then to enter the decree. Afterwards, at the next term, an order was made to enter the decree nunc pro tune, and the clerk, following the erroneous recital in the appeal bond as to the amount of the decree below, entered the decree for $1,583.55, when it should have been for $1,356.45. Hence there is an excess in the decree of $227.10. A remittitur must be entered of record, as of the date of the decree against the sureties, for this sum, and certified to the sheriff of Phillips County, with directions to him to endorse the amount remitted as a credit upon the execution in his hands, as of the date of the decree. There is nothing in the suggestion of the solicitor of the sureties, that their undertaking in the appeal bond was for Rogers, as administrator of his wife. Rogers, as administrator of his wife, recovered against Brooks, in the court below, a decree for the lands of the wife, which was all he claimed, as administrator, Harris vs. The State. in the suit. From this part of the decree he took no appeal, but he appealed from the personal decree rendered against him for money, on the cross demand of Brooks, and it was on this appeal that the supersedeas bond was executed by the sureties. In this appeal, the estate of the wife was in no way involved. It was on the appeal of Brooks that the estate of the wife was involved. HARRIS VS. THE STATE. 1. CRIMINAL PRACTICE: Polling the jury. The object in polling the jury is to ascertain if the verdict announced by the foreman is the verdict of all the jurors; and if there is any reason to doubt that all the jurors concur, it is competent for the court, of its own motion, to cause the jury to be polled. 2. VERDICT. 3. Where the instructions do not appear in the transcript, and the court below refused to set the verdict aside, the presumption is that it was in accordance with the instructions. When the jury find the accused guilty, on circumstantial evidence, this court will not disturb the verdict, if there is any evidence to sustain it. APPEAL from Drew Circuit Court. ENGLISH, CH. J.: The appellant, Henry Harris, was indicted, tried and found guilty of murder in the first degree, at the August term, 1876, of the Circuit Court of Drew County. He filed a motion for a new trial, which was overruled, and he took a bill of exceptions, setting out the evidence introduced on the trial. He was sentenced to be hung, and an appeal was allowed him by one of the judges of this court. Harris vs. The State. The third, fourth and fifth grounds assigned in the motion for a new trial may be considered together. They follow: "Third-Because the jury did not return a verdict for the degree of murder for which they found the defendant guilty. "Fourth-Because the jury were polled to ascertain the degree of murder. "Fifth-Because the verdict does not state the degree of murder for which the jury found the defendant guilty." So much of the record entry of the trial and verdict as relates to these assignments, is as follows: "After hearing all the evidence adduced, the argument of counsel and the charge of the court, the jury retired in charge of a sworn officer to consider of their verdict, and afterward returned into court the following verdict, viz.: We, the jury, find the defendant guilty of murder in the first degree, as charged in the within indictment. F. V. Henderson, Foreman."" The same verdict appears to have been endorsed upon the indictment. It is manifest, from the transcript of the record before us, that there is no foundation in fact, for the third and fifth assign ments. As to the fourth, it appears from the bill of exceptions that, after the verdict, as above, was announced'in court, in the presence of the prisoner, the court, of its own motion, polled the jury to ascertain if that was their verdict, and each one answered, "it is." The object of polling the jury is to ascertain whether the verdict, rendered by the foreman in behalf of himself and the rest, is really concurred in by the others. Colby Cr. L., 385; State v. John, 8 Iredell L., 339. Sir Matthew Hale says: "Now, touching the giving up of their verdict, if the jury say they are agreed, the court may examine them by the poll, and if, in truth, they are not agreed, Harris vs. The State. they are finable. If the jurors, by mistake or partiality, give their verdict in court, yet they may rectify their verdict before it is recorded, or, by the advice of the court, go together again and consider better of it, and alter what they have delivered. But if the verdict be recorded, they cannot retract nor alter it." 2 Hale's Pleas of the Crown, 301. In Watts v. Brains (on an appeal of the wife for the murder of her husband), Croke Elizabeth, 779, there is this report: "The jury going from the bar, notwithstanding the evidence was pregnant against the defendant, eight of them agreed to find him not guilty; but the other four withstood them, and would not find it but to be murder. On the next day morning, two of the four agreed with the eight, to find him not guilty, and afterwards the other two consented in this manner, that they should bring in and offer their verdict not guilty; and if the court disliked thereof, that then they all should change the verdict and find him guilty. Upon this agreement they came to the bar, and the foreman announced the verdict, that the defendant was not guilty. The court, much misliking thereof, being contrary to their direction, examined every one of them by the poll, whether that was his verdict, and ten of the first part of the pannel severally affirmed their verdict, that the defendant was not guilty; but the two last affirmed how they agreed, and discovered the whole manner of their agreement; whereupon they were sent back again, and returned and found the defendant guilty." 66 By statute: Upon a verdict being rendered, the jury may be polled at the instance of either party, which consists of the clerk or judge asking each juror if it is his verdict, and if one answers in the negative, the verdict cannot be received." Gantt's Digest, sec. 1967. But this statute does not deprive the court of the authority to cause the jury to be polled if it has reason to doubt that all of the jurors have consented to the verdict announced by the foreman. Harris vs. The State. In this case, the appellant could not possibly have been prejudiced by the action of the court in causing the jury to be polled. The former had announced the verdict of guilty of murder in the first degree. It turned out, upon the polling, that all of the jurors agreed to this verdict. If any juror had answered in the negative, the verdict could not have been received, but the jury would have been sent out to consider further of their verdict. The second assignment: "Because the verdict is contrary to the instructions of the court." It appears from the bill of exceptions, that the court gave instructions asked by the State, and others moved for the prisoner, and charged the jury on the law applicable to the case, but the instructions and charge are not in the bill of exceptions, nor in the transcript before us. We have, therefore, no means of determining whether the verdict was contrary to the instructions. of the court or not. The presumption is, that the verdict was in accordance with the instructions of the court, as nothing contrary appears, and the court refused to set it aside on the motion for new trial. The first assignment: "Because the verdict is contrary to the evidence." The appellant was charged with the murder of Adam Pippin. The indictment alleges, in the usual form, the time of the offense, 9th of August, 1876, the venue, Drew County, and the manner of the killing, by shooting with a double-barrel shot gun, loaded with powder, leaden balls, etc., etc. The corpus delicti was proven by direct testimony. It appears that Adam Pippin lived in a cabin on the premises of William Nichols in Drew County. On Wednesday night, of August the 9th, 1876, about eight or nine o'clock, while sitting in his house, he was shot with a gun, through a crack in the wall, near the chimney, and instantly killed, in the presence of his |