(dissenting). — Not being able to arrive at the same conclusion as the majority of the court in reference to the disposition of this case, I have thought proper to briefly give my reasons for dissenting. The case is before us upon a rehearing. I am perfectly satisfied with the result upon the merits, but as to the error complained of, in regard to the reprehensible conduct of one of the jurors, I feel that we have, in our previous decision, laid down a rule which, while then in consonance with the great weight of authority, is now, by reason of a late decision of the supreme court of the United States, not law for this court. We are bound by the rulings of the supreme court of the United States. In the case of Clyde Mattox v. U. S., 146 U. S. 140, 150, 13 Sup. Ct. Rep. 50, in discussing the effect of communications made to a juror or jurors by an officer of the court, Chief Justice Fuller says: “Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.” In the previous decision of this' case (Territory v. Edie, 30 Pac. Rep. 851) Chief Justice O’Brien says: “It is now almost universally established that, unless it appears that such interference takes place for some corrupt or sinister purpose, or that such conduct has been prompted by the parties, and has resulted injuriously to one of such parties, the verdict will not be disturbed, either in civil or criminal cases.” It is quite apparent that these two rules are opposed to each other. The one throws the burden upon the territory to prove the acts done not prejudicial, they being assumed to be such. The other casts the burden upon the accused to prove the acts injurious or prejudicial to him. The one enunciated by the United States supreme court must govern, provided it is a rule adopted by that court upon a point directly before them. It is suggested that the rule is obiter dictum, but I can not so consider it.
In the case where this rule is laid down, it is true that the record shows that the lower court refused to consider the affidavits of certain jurors which proved the acts complained of; and the point was urged that an appellate court will not review the action of a trial court in overruling a motion for a new trial, that being in the sound discretion of the trial court. This was not denied, but the court held that, as the trial court refused to consider the affidavits, that it had not exercised its discretion at all, and hence jit proceeded to consider whether that court ought to have considered the affidavits, and how, and, in arriving at its conclusion that there was error in refusing to consider the affidavits, the court shows why, legally, they ought to have been considered, and in what manner. If the court had stopped short of enunciating the rule which they did, if it is law, they would have sent the accused back to be tried in accordance with a rule which they recognized not to be law. The question before the supreme court was not, alone, ought the affidavits to have been received, but for what purpose. And the decision is that affidavits may be received to show that acts have transpired with or in the presence of jurors possibly prejudicial to the accused, and, if so, then a sound discretion would at once award him a new trial, unless the prosecution made their harmlessness to appear. Without the rule laid down the decision would have been valueless to the law, and possibly only a temporary benefit to the accused. It is, however, urged that the affidavits in this case show that the act was harmless. There are two objections to this contention: First, I think that they show very plainly the possibility of prejudice, and not one thing to explain away that possible prejudice. It was well insisted, upon argument, that there was a possibility — yes, a probability— that the juror who came and obtained the verdict in the handwriting of an influential officer might, with great effectiveness, overcome the scruples of a dissenting juror by showing him that his especial friend or master thought the accused guilty. Where is there anything in the affidavits to show that this possibility did not occur? If there is nothing to show this harmlessness in the record, it must be presumed that the accused was injured. But, in the second place, I do not believe that the lower court ever used its sound discretion upon the matter, and hence, under the acknowledged point of the decision of Mattox v. U. S., supra, he is entitled to a new trial. I understand that a “sound discretion” means a discretion exercised upon all the facts in the case in accordance with the law. It must, then, be presumed that the lower court passed upon the affidavits before it under the view of the law as then held by this court, — that, if there was any injury in the act complained of by the accused, it was his duty to establish ‘ ‘that such interference takes place for some corrupt or sinister purpose, or that such conduct has been prompted by the parties, and has resulted injuriously to pne of such parties.” It may be conceded that the accused failed to meet the requirements of this rule. But that was not the law, and if the law, as now enunciated, had been the rule by which the court had exercised its discretion, it is possible that a new trial might have been granted the accused. It is no answer to this position to say that the territory introduced another affidavit which tends to show the harmlessness of the act complained of, for it could not have been for that specific purpose, as there was no law then which required such a procedure. It may be urged that we can readily see by the affidavits that the act was harmless, and hence it is a “vain thing” to reverse the case, and send it back for a new trial. I have shown already that I do not draw that conclusion from the affidavits, and it is possible that the trial court might not arrive at that conclusion. But that is not the question. The accused was entitled, under the law, to have his motion for a new trial passed upon, in the first place, by the trial court, not by this court, according to the due course of law. He was entitled to a sound legal discretion upon that right, and, not having had such a ruling, he has presumptively been prejudiced. Crime ought to be punished with as little delay as possible, consistent with the orderly administration of law, and without any sentimentality. But there is, in my judgment, as great a danger, if not greater, in turning aside from the proper rules for the administration of criminal procedure, even where it may be clearly seen that no practical injustice is being done, as there is in giving way to the sentimental expressions of our nature. It is far better that some acts of wrong go “unwhipped of justice” than that it be known that juries may be tampered with, and yet their verdicts stand. The sure, unchanging, and absolutely pure administration of the forms of law is the only safe protection for innocence and liberty, and under such administration it is hardly probable that crime will fail of being punished. I am of the opinion that the judgment ought to be reversed.
Fall, J.I agree with the conclusions reached by Judge Seeds.