On July 11, 1918, a jury acquitted Louis Schwab and wife, after a trial lasting four days in the Nassau County Court, on an indictment for keeping a disorderly house at Freeport. On July 29, 1918, Thomas B. Nunns, one of this jury, was served with an order to show cause why he should not be punished for contempt. This was based on the affidavits of Mr. Edwards, assistant district attorney, and of three members of the jury.
Mr. Edwards deposed that since the verdict rumors had come to him that Nunns “ had stated to the jurors while in deliberation in the jury room, that the place was all right, because he had been there on many occasions with his wife, and that there was a much worse place in Freeport, and that certain Freeport people were jealous because Schwab was making a lot of money, and they wanted to put him out of business.” Mr. Edwards also set' out that before accepting Nunns as the ninth juror he had inquired if Nunns knew either of the defendants, if he had ever been in the place, which he answered in the negative, and that Nunns had stated that if accepted he would be governed by the evidence in the case.
After the trial, Mr. Edwards further deposed that he had this colloquy with Nunns: “Mr. Edwards: I understand Mr. Nunns that you were the whole jury; that you told them you knew all about the place. Mr. Nunns: Well, I only told the truth, I did tell them all I knew about it, and that I had been there with my wife, and that I had never seen anything wrong. Mr. Edwards: Did you think that was fair? ’ ’
The affidavit continued: “ Mr. Vandewater, the foreman of the jury, said he was surprised while the deliberation was going on, to think the District Attorney allowed a man with such prejudice and so much alleged knowledge of the place, *445upon the jury, and deponent informed the foreman of the jury that he had been assured that said juror was an honest man. After the trial Thos. B. Nunns visited Schwab’s place on several occasions. Deponent further says that he has not found any reflect [sic] on any other juror and whatever effort [sic] this man Nunns had on the jury we cannot tell, but we do think a dishonest man upon the jury at this time, during the trial, could plant disfavor of the People’s case with the jury as they proceeded because on the first ballot the jury stood six-six.”
The order required Nunns to show cause why he should not be punished “ for contempt of this Court in and out of its presence.” Relator appeared by counsel, and moved to dismiss the proceedings. The court directed an adjournment, saying: “ The District Attorney will subpoena the jurors and have them here at the next hearing.”
On August fifth, the adjourned day, there were called and sworn nine members of the jury. Over objection and exception two of such jurors (Vandewater and Mullin) testified that Nunns had said to the jurors that he knew the people and had been in the place with his wife; four (Frank, Jackson, Doncourt and DeMott) that Nunns said he had been in the place or had been there more than once; two others (Foley and Siles) remembered no such statement. White (the remaining juror produced) said he had heard no such statement of Nunns in the jury room, but some time after the trial, when riding from Mineóla to Freeport, Nunns had said that he had been with his wife in the Schwab place, and that he did not see anything the matter with it. Whether this was a visit before the trial did not appear. Doncourt’s cross-examination, having been cited in part in the majority opinion, is in full as follows:
“ Cross Examination by Mr. Clock: Q. Do you recall any question that was asked of him [Nunns] by the District Attorney before he became a juror? A. Why, no, I don’t know, I paid no particular attention. By Mr. Edwards: Q. You recall that the District Attorney asked you and the rest of the jurors a great deal about their acquaintanceship with the defendant and their knowledge of the place? A. Yes. By Mr. Clock: Q. When did he say he had been in the *446place? A. I don’t know that he made any statement as to the time, prior to the trial, of course.” Thus the witness may have understood the question and his reply as referring to Nunns’ statements prior to the trial.
None of these witnesses supported the moving affidavit as to the questions to Nunns before he was sworn as a juror, or as to Nunns’ alleged replies.
The relator, standing on his exceptions to the competency of such conversations in the jury room, offered no testimony. The learned county judge found the relator guilty of a contempt for false statements about not knowing defendants, before he was taken as a juror; also for saying to his fellow jurors, while deliberating on the case, that he knew defendant Schwab, also the place of business, and that he had been in the place of business several times before the trial. (Matter of Nunns, 104 Misc. Rep. 350.)
Accordingly, on August 15, 1918, Nunns was adjudged in criminal contempt and fined $150 or thirty days’ imprisonment in the county jail.
A writ of certiorari to review these proceedings was sued out.
Here is a startling result. After a criminal trial has ended in an acquittal, a juror from the vicinage, whom the prosecutor regarded as influential in bringing about the disappointing result, is fined, with imprisonment in default of payment. While jurors were so fined under the Stuart Kings (Hawkins Pleas of the Crown, chap. 72, § 5; Hallam Const. Hist. vol. 2, chap. 13), such usurpation was stopped in 1671 by Vaughan, Ch. J., in Bushell’s Case (Vaughan R. 135), where the jurors, for not convicting Penn and Mead of the crime of unlawful assembly, had been each fined forty marks.*
In these proceedings the learned county judge did not *447have interrogatories presented, but caused the members of the jury to be subpoenaed and examined viva voce before him. The relator was thus confronted with the witnesses against him, which is the preferable method with such peculiar charges. (Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 444; Bate's Case, 55 N. H. 325; Staley v. South Jersey Realty Co., 83 N. J. Eq. 300, 307.) But the vice, and fundamental error, was the inquisition into the privacy of the jury room, where what a juror says and how he votes is “ within the seal of secrecy for all time.” (1 Bailey Habeas Corpus, § 96, pp. 378, 379; Wigm. Ev. § 2346; Whart. Ev. [3d ed.] § 601.) How could justice be administered through results of free conference unless jurors understand “ that their deliberations in the jury room are inviolable, and that the reasons for their verdict cannot be questioned? ” (Jones Ev. [3d ed. 1913] § 766.)
Ordinarily it is their verdict, not the discussions leading to it, that is the essential. But if it were otherwise, the absolute privilege surrounding the jury’s deliberations, as distinguished from overt acts, cannot be violated, without destroying the jury’s constitutional purpose. To subject them to such a questioning tends to restrain freedom of expression, so essential to full deliberation, if not to overawe them in discharge of their duty.
Although in 1805 a juror’s affidavit was received in New York to show the misconduct in reaching a verdict by averaging the estimates of damage, Kent, Ch. J., dissented (Smith v. Cheetham, 3 Caines, 57), and his view has not only prevailed in New York (Clum v. Smith, 5 Hill, 560; Williams v. Montgomery, 60 N. Y. 648), but throughout the entire country save only in six jurisdictions. (Wigm. Ev. § 2354; Jones Ev. [3d ed.] § 767, n. 92.) It is also the rule in British dependencies. (Oswald Contempt [ed. 1913], 212.)
The learned court from his own memory might recall the negative statements attributed to Nunns, before he was taken upon this jury, but he could not know whether such statements were true or were false except by means of the testimony of the other jurors, when questioned as to their consultations. Hence this judgment purporting to convict the relator of criminal contempt must finally rest upon such testimony improperly received. It violated the ancient and *448recognized rule that when “ the jury retire to deliberate upon their verdict to be given, their conversations and discussions,— their deliberations,— cannot be inquired into.” (Hewett v. Chapman, 49 Mich. 4.) In Wharton’s words: “The communications between jurors, referring to the case under consideration, as an official body, are privileged, and they cannot be compelled to testify to the same; nor will testimony be received to show their mistake, or to impeach their verdict.” (1 Whart. Grim. Ev. [10th ed.] 1054.)
The wisdom that forbids to pry into the consultations of jurors especially applies in a criminal case. Suppose after conviction it were made to appear that against the statute and charge of the court one juror had forcibly commented to his fellows upon the failure of the accused to be sworn, could the court punish such remark, or even permit it to be the subject of inquiry?
Furthermore, this is a matter of complaint which, in Coke’s words, “ was never seen before.” Punishment for contempt is here applied to acts not external to the deliberations of the jury, nor to overt acts, like drunkenness (Perry v. Bailey, 12 Kan. 539), but to the intimate and free conversations-between jurors in which expressions of personal knowledge passed before arriving at their verdict. There is no outside proof that before the trial the relator had declared a bias or partisanship, as in Hyman v. Eames (41 Fed. Rep. 676), which cannot be deemed an authority here.
The jurisprudence of New York has jealously guarded the privacy of a jury’s consultations. In civil cases New York abolished “ attaints upon untrue verdicts ” (Act of March 30, 1801; Laws of 1801, chap. 90, § 28; 1 K.'& R. 358, § 28) about twenty-five years before that strange process of investigating juries’ actions was finally repealed in England. (6 Geo. IV, chap. 50, § 60.)
Our Revised Statutes set strict bounds upon courts’ investigation of the jury room by this provision: “ Attaints upon untrue verdicts are abolished; and for any verdict rendered by him, no juror shall be questioned, or be subject to any action or proceeding, civil or criminal, except to indictment for corrupt conduct in rendering such verdict, in the cases prescribed by law.” (2 R. S. 421, § 69.)
*449The revisers’ note to this called “ the residue new, but declaratory of a principle that has been sometimes disregarded.” (Revisers’ Reports, vol. 5, p. 65.)
Jurors are protected from inquisition and punishment save by process under indictment with jury trial by a like provision in our Civil Rights Law (Consol. Laws, chap. 6; Laws of 1909, chap. 14), section 14, in that it wholly drops the qualifying words “ in rendering such verdict.” Hence the Legislature has unmistakably left misconduct of jurors to be dealt with under the established methods of the criminal law.
My real difference with my brethren is whether these provisions can be disregarded if only the verdict be not technically affected. After a jury has been discharged, can the prosecution call up the jurors and demand to have them sworn again to testify how and by what arguments they finally voted not to convict? What would be left of the moral value of an acquittal, if the jurors, or one of them, could be fined for participation in this result? The distinction as to such inquisition (hitherto happily unknown in the United States) is plain. It is between what the jurors may say in deliberating upon their successive votes — what Wigmore calls “ their subjective freedom of expression ”— and overt acts, like getting drunk, or otherwise incapacitating themselves from discharge of their duty, or the effect on them of extraneous influences like evidential papers from a party or newspapers covertly brought into the jury room. The decision of McDonald v. Pless (238 U. S. 264), relied upon in the majority opinion, was a civil cause, in which, despite the attempt to have a juror afterwards sworn upon defendant’s motion for a new trial, a quotient verdict was sustained.
Professor Wigmore says (§ 2345): “ The dogma that a juror may not impeach his verdict is, then, in itself neither correct in law nor reasonable in principle.” He refers this doctrine of exclusion to the general principle of privileged communications between jurors during retirement. He lays down the fundamental principle: “ The communications originate in a confidence of secrecy; this confidence is essential to the due attainment of the jury’s constitutional purpose; the relation of' juror is clearly entitled to the highest con*450sideration and the most careful protection; and the injury from disclosure would certainly overbalance the benefits thereby gained.” (§ 2346.) He also states that the communication of a juror’s expressions of personal knowledge are within the privilege for confidential communications which “ ought to exclude them.” (§ 2354(2).)
However it may be in other jurisdictions, in the State of New York it is the privilege of the jurors that is inviolable, not the result in a mere verdict, the value of which depends wholly on maintaining such privilege. Suppose, after a jury have failed to agree and have been discharged, a juror should be sued for slander in having told his fellow jurors'that the defendant in the case was a thief. Would such evidence be admissible, because it would not happen to “ impeach a verdict? ” The power to punish for contempt in this State is limited. The Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), section 753, subdivision 6 (re-enacted from Code Civ. Proc. § 14, subd. 6, and B. S. pt. 3, chap. 8, tit. 13, § 1, subd. 6; 2 B. S. 534, 535, § 1, subd. 6), provides: “A person duly notified to attend as a juror, at a term of the court, for improperly conversing with a party to an action or special proceeding, to be tried at that term, or with any other person, in relation to the merits of that action or special proceeding; or for receiving a communication from any person, in relation to the merits of such an action or special proceeding, without immediately disclosing the same to the court.”
The revisers spoke of defining a power to punish con-tempts, “ which, while it is absolutely necessary in many cases, is yet perhaps, more liable to abuse, and in England, has been abused, more than any other possessed by the courts.” Subdivision 6 was reported as enacted, except that the word “ improperly ” was inserted by the Legislature, who further stmck out the revisers’ additions, “ for eating or drinking, after being sworn as jurors, or for departing from the court, or for separating from the other jurors or the officer having them in charge, without the permission of the court.” (3 B. S. [2d ed.], 772, 773, Appendix.) To seek to punish for things privately said by jurors is not found in either section 750 or section 753 of the Judiciary Law. Where, after an acquittal, it was sought to call in question the act of a *451grand jury in finding the original indictment, Coke said of such attack on jurors: “ It will be a cause of infinite vexation and occasion of perjury, and smothering of great offenses, if such averments and supposals shall be admitted after ordinary and judicial proceeding; and it will be a means, ad deterrendos et detrahendos juratores a sermtio Regis.” (Floyd & Barker Case, 12 Coke, 23, 24.) Indeed the Federal court has fined a grand juror for such disclosure. (Matter of Atwell, 140 Fed. Rep. 368.) This was reversed because the obligation of secrecy was held not to continue after the grand jury had been finally discharged and the accused apprehended. (Atwell v. United States, 162 Fed. Rep. 97.)
The British Court of Chancery is declared to be “ jealous of the personal freedom of the subjects of the Crown.” (Hope v. Carnegie, L. R. 7 Eq. 254, 260.) Not less so should be the attitude of a New York court. “ The power which courts possess of punishing for contempts, and for refusal to give evidence, is, in its nature, an exception to the provisions of the Constitution. It is a power to deprive a man of his liberty, without a jury and without a regular trial. It cannot therefore be extended, in the least degree, beyond the limits which have been imposed by statute. No implication, and no fancied necessity, can be permitted to add to the literal meaning of the words by which the Legislature have restricted this power.” (Rutherford v. Holmes, 5 Hun, 317, 319; affd., 66 N. Y. 368; approved in Johnson v. Austin, 76 App. Div. 312, 313.) “ Any shred or remnant of undefined common-law power was deemed dangerous.” (People ex rel. Munsell v. Court of Oyer & Terminer, 101 N. Y. 245, 250.)
Even in England, where there is no limiting statute, as in New York, for contempt, Sir Geoege Jessel solemnly declared: “It seems to me that this jurisdiction of committing for contempt being practically arbitrary and unlimited should be most jealously and carefully watched, and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of judges to see whether there is no other mode, which is not open to the objection of arbitrariness and which can be brought to bear up on the subject.” (Matter of Clements, 46 L. J. Ch. Div. [N. S.] 375, 383.)
The county prosecutor and the court should be ever zealous *452to preserve the purity, fairness and impartiality of juries, and to use all means provided by the Legislature to prevent interference with the due administration of justice. But the present order, with the method of inquiry followed, if allowed to stand as a precedent, in my judgment would work greater harm than could come from this acquittal. Such order removes landmarks which our ancestors set up. It strips from acts of a juror in an official body the protection to be regularly subjected to indictment and trial by the country, a safeguard guaranteed to the worst criminal. It does violence to a statute carefully framed to restrict criminal contempts to conduct willfully disobedient or disorderly.
Hence I vote to reverse, and to dismiss the proceedings.
Kelly, J. (dissenting):
I am obliged to dissent upon the ground that the proceedings against the relator were in violation of the Civil Rights Law (Consol. Laws, chap. 6; Laws of 1909, chap. 14), section 14. The juryman was called to account in a contempt proceeding for a verdict rendered by him.
Determination confirmed and appeal dismissed.
As to the early practice of fining jurors, see Throckmorton's case, by Fitzjames Stephen, in Select Legal Essays (Vol. 2, p. 491). The full proceedings with the resolute jury which held out against convicting Penn and Mead are in Forsythe Trial by Jury, p. 154. Disapproval of the practice appears in 4 Bl. Com. 361. Neither in trials nor in the Star Chamber afterwards, have I found that a judge ever questioned a juror as to what they had said in retirement. In 1578 a juror was committed to the Fleet, and then fined, for so small a matter as eating confectionery after the jury had left the bar! (Welcden v. Elkington, 2 Plowden Rep. 516, 519.)— [Note by the Court.