ON SECOND MOTION FOR REHEARING On March 8, 1929, we denied appellant Sharp's first motion for rehearing in this cause, without opinion. Some time thereafter, upon leave granted, this second motion for rehearing was filed by counsel who did not participate in the trial, who appeared for appellant Mersfelder only on the appeal, and who has been newly employed by appellant Sharp.
The present motion is in no wise concerned with anything heretofore decided. It is based entirely upon certain misconduct claimed to have affected the deliberations of the jury and to have vitiated its verdict. It is claimed that, at about the time the case was given to the jury, news came of the sudden death of a child of one of the jurors; that a bailiff, unnamed, communicated the fact to the juror; and that, while the juror did not believe appellant Sharp guilty, and stood out for a number of hours, he was finally overcome by his anxiety to get released from the service and go to his home, and not only consented himself to a conviction, but persuaded two fellow jurors, through sympathy with his affliction, to bring about a verdict. The showing made is the affidavits of the three jurors, and of another juror, who, while not *Page 469 claiming to have been influenced, says that the others were. In addition, there is an affidavit of the district attorney and a statement by the trial judge.
The eminent counsel who sponsors this motion does not overlook the general rule, well established in this jurisdiction, that the affidavits of jurors cannot be received to impeach their verdict. See Goldenberg v. Law, 17 N.M. 546, 131 P. 499; State v. Taylor,26 N.M. 429, 194 P. 368; State v. Analla, 34 N.M. 22, 276 P. 291. He does not seriously contend that we may receive the statements of jurors to show the motives which actuated them in agreeing upon a verdict, or that they agreed contrary to their convictions. He does argue, however, that the affidavits of these jurors may be received to show the misconduct of the bailiff, and that such misconduct in fact appears from the statement of the judge, even if the affidavits of the jurors were entirely disregarded. He contends that the information shown to have been communicated to the juror, having a natural tendency to distract him and render him unfit for deliberation, itself renders the resulting verdict illegal.
[7] Neither does the counsel overlook the fact that the question here presented is one which, in due course of judicial procedure, should have been presented to the trial court by motion for new trial. He urges, however, that, as the verdict is shown to have been illegal, he is in a position to invoke the inherent power of this court to protect the fundamental rights of an accused person, citing State v. Garcia, 19 N.M. 420,143 P. 1012, and the line of decisions originating therein.
We need not consider these contentions. To do so would be unavailing. There is a fatal weakness in the showing made. The change of counsel is the only excuse offered for the failure to present this question in some manner to the trial court. Assuming that upon a proper showing this court might exercise the extraordinary power here invoked, manifestly we should do so only upon the fullest showing of diligence and good faith. For aught that appears here, appellant and his then counsel may have known of the circumstance here brought to our attention *Page 470 before the verdict was returned. We can hardly doubt that they knew of it in time to have moved for a new trial in the district court. If they did know of it before the verdict was returned, and failed to bring it to the attention of the trial court, speculating upon the verdict, they could not now be heard to complain. State v. Merritt, 34 N.M. 6, 275 P. 770.
The present motion amounts to a motion for new trial made originally in this court. It is not our function to hear such motions. Ortega v. Ortega, 33 N.M. 605, 273 P. 925. If under any circumstances we should assume the power, it must be upon a showing of necessity and of the impossibility of securing the relief in the regular course. This is not such a case. The principles thus well established are dictated by sound public policy, and by a due regard to the distinct functions of court and jury, of trial and appellate courts, and of the distinction between preserving and enforcing the legal rights of an accused person, and extending clemency to him. To deviate from these principles would open the door to abuse. We need not, and do not now, hold that these principles can in no case be relaxed. We are constrained to hold that they cannot be yielded upon the present showing.
The motion must be overruled.
BICKLEY, C.J., and PARKER, J., concur.
CATRON and SIMMS, JJ., did not participate.