At the time of the adoption of the constitution, the practice and procedure of the territory was embodied in the 1887 Revised Statutes. Sec. 19-2307, I. C. A., is an exact copy of sec. 7952 of the 1887 Rev. Stat. It provided that the court may "grant a new trial in the following cases only." (Italics supplied.) The constitution provided (Art. 1, sec. 7) that the right of trial by jury "shall remain inviolate." Under the decisions of this court, construing that provision, it was meant "to secure that right as it existed at the date of the adoption of the *Page 164 constitution." (Christensen v. Hollingsworth, 6 Idaho 87,53 P. 211, 96 Am. St. 256; Shields v. Johnson, 10 Idaho 476,79 P. 391, 3 Ann. Cas. 245; People v. Burnham, 35 Idaho 522,207 P. 589.)
The section of the statute now in question (19-2307) provides that
"When a verdict has been rendered against the defendant the court may, upon his application, grant a new trial in the following cases only: . . . .
"3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented."
This statute was originally adopted by the territorial legislature from the California Code (Kerr's Cyc. Code 1920, part II, Penal Code, sec. 1181). This statute has been considered by the supreme court of California in numerous cases, and in People v. Galloway, (1927) 202 Cal. 81,259 P. 332, at 336, the supreme court of that state reviewed the authorities at some length and held:
"We think the proper rule is this: That under section 1181, subd. 3, it is within the power of the trial court to grant to an accused a new trial because of misconduct of a juror whether such misconduct consists of failure to disclose a prejudicial mind at the time he is sworn or whether such misconduct arises after he is sworn as a member of the trial jury, subject, of course, to the qualification that such misconduct will not be considered sufficient where the accused has failed to exercise diligence in the premises or has knowledge prior to the verdict of such misconduct; nor will it avail an accused when, from a consideration of the whole case, it can be seen that he has suffered no injury therefrom. In other words, a safe rule applicable to the situation would be that the court would not be warranted in setting aside a verdict on account of such misconduct unless from a review of the entire case it can be seen that the accused has not only been diligent but has suffered an injustice by reason of the action of such juror."
In support of the foregoing conclusion, among other authorities, the court cited Wharton's Crim. Pleading *Page 165 and Practice (9th ed.) p. 605, sec. 844; Bishop's New Crim. Procedure, sec. 949 b2; 16 C. J., p. 1154; (23 C.J.S., Crim. Law, sec. 1446) 1 Hayne on New Trial and Appeal (rev. ed.), sec. 45.
People v. Galloway has been approved and cited in the following cases: Mast v. Claxton, 107 Cal. App. 59,290 P. 48, 51; People v. Young, 21 Cal. App. 2d 423, 69 P.2d 203,205; Williams v. Bridges, 140 Cal. App. 537, 35 P.2d 407,409; West Coast Securities Co. v. Kilbourn, 110 Cal. App. 293,294 P. 57, 58; In re Malvasi's Estate, 96 Cal. App. 204,273 P. 1097, 1100. See, also, Wilson v. Wiggins, 54 Ariz. 240,94 P.2d 870, 872.
It seems to me, as it appears to have appealed to the supreme court of California, that it is "misconduct" of a juror to qualify and participate as a juror in the trial of a felony case, knowing that he is a non-resident in the county and not qualified as a juror to serve. It is quite uniformly conceded by the authorities, that there must be some way of raising the question after verdict, where the defendant was not apprised of the situation in time to avail himself of a proper objection to the juror. Both the territory and state legislatures, having said that the only grounds for new trial are those defined in the statute (Rev. Stat., sec. 7952, sec. 19-2307, I. C. A.) it must necessarily follow that both the Constitutional Convention and the legislature intended that all such issues, as that presented here, might be presented on motion for new trial.
The question that arises now is whether the irregularity in the selection of the jury or disqualification of the juror Kendall is such as to work a reversal of the judgment. It is not claimed that the juryman was prejudiced or biased against the appellant; nor is any other objection urged against the juror except that he had changed his residence from Bingham county to Bannock county prior to being called as a juror in this case. The verdict against defendant was unanimous and there is nothing in the record from which an inference could be drawn, that the juror improperly, unduly or otherwise influenced the rest of the jurors. There is absolutely *Page 166 nothing disclosed indicating that appellant has been prejudiced in any manner by the circumstance that one of the jurors happened to be a resident of an adjoining county. As said by this court in State v. McBride, 33 Idaho at page 127, 190 P. 247:
"C. S., secs. 9084 and 9191 admonish us to disregard such defects in procedure as are those above mentioned.
Sec. 9084 [19-2719, I. C. A.]: 'After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.'
Sec. 9191 [19-3602, I. C. A.]: 'Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right.' "
Under such circumstances, I do not think the judgment should be reversed on account of the qualification or lack of qualification of this juror.
I concur in a reversal of the judgment on the grounds stated by Mr. Justice Givens in his concurring opinion.