(after stating the facts). 1. This court, in the case of Dolan v. State, 40 Ark. 454, passed upon the alleged misconduct of the jury in the use of intoxicating liquors as a beverage during the progress of the trial of a defendant for a capital offense. In that case it was held, after an exhaustive review of the former cases in this court, as well as other jurisdictions, on the subject that “Where it appears from affidavit for a new trial in a criminal case that the jury drank intoxicating liquor during the trial, the circuit court should set aside their verdict of conviction, unless it further appears from the testimony that the jury were guilty of no excesses or misconduct that could have resulted prejudicially to the defendant.”
Chief Justice English, who rendered the opinion for the court, quoted liberally from the opinion of the Supreme Court of Colorado in Jones v. State, Central Law Journal, Vol. 16, No. 21, p. 409, in which the learned justice quoted from Mr. Wharton as follows: ‘ ‘ The general rule as stated by Mr. Wharton in his work on Criminal Law, § 3111, is that the verdict will not be set aside on account of the misconduct or irregularity of the jury, even in a capital case, unless it be such as might affect their impartiality or disqualify them from the proper exercise of their functions. ’ ’
Continuing, he said: “In the case át bar, it does not appear that the misconduct complained of disqualified any juror in the proper exercise of his functions in the least, or in any degree whatever impaired the correctness or justness of the verdict, but, on the contrary, the testimony to the point clearly contradicts even a presumption against the verdict.
“But it is said, on the other hand, that the only safety lies in the rigid rule of setting aside the verdict in every case where intoxicating liquors are used by the jury, regardless of whether the jury were affected by such use or not. We can not assent to this proposition. Would such a rule prevent a repetition of like misconduct by future juries? ' We say no. And instead of safety there is a manifest danger in the rule, for it would hold out an obvious temptation, and furnish an almost certain opportunity to secure a new trial in every case, by the surreptitious introduction of liquors into the jury room, and would tend to lessen the certainty of conviction in every criminal case.”
And he concludes by saying: “Such misconduct on the part of the jury certainly deserves strong condemnation and punishment, * * * but this is a matter entirely apart from the question of setting aside the verdict when its fairness is not impeached.”
We approved the doctrine in Dolan v. State, supra, in the case of Payne v. State, 66 Ark. 545-549. In the Dolan case the facts showed that ten of the jury whose misconduct was called in question made affidavits to the effect that no juror was under the influence of intoxicating drinks or subjected to any other influences whereby they, or any of them, were controlled or biased. The two jurors whose affidavits were not taken could not be found. The jurors were kept together and were attended by an officer throughout the progress of the trial, and the bailiff having them in charge testified that “from the time the jury was ordered by the court to be kept together until they returned their verdict and were discharged, there was no juror of the panel under the influence in the least degree, to be perceived by affiant, of intoxicating or other stimulants, but that all of the jurors, while on the jury, conducted themselves in all things with decorum, and were at no time exposed to improper influence whereby their verdict might be controlled or biased to the injury of defendant.”
Another bailiff testified that two of the jurors in that case, whose conduct was challenged on account of the use of intoxicating liquors, took one drink and no more, and were not influenced thereby in any degree that he could perceive, and they were known to him to be «ober citizens of the highest standing in the community, and that during the trial said jurors were never at any time subjected to any influence whatever prejudicial to defendant.
It thus appears that the facts which influenced the court to refuse to disturb the verdict on account of the alleged misconduct of the jury in the Dolan case were quite different from the facts in the instant case. Here only three of the jurors, out of the twelve whose conduct was called in question, made affidavits to the effect that none of the jurors were intoxicated to a visible extent. These jurors said that, so far as they were concerned, the whiskey did not have anything to do with the verdict, and they only spoke for themselves, because they were accustomed to taking three drinks of whiskey every day. There is' no testimony in the record on the part of the other jurors to show that the whiskey drunk by them did not have some effect upon them, and that it did not impair their faculties and influence them in their verdict. There was no testimony upon the part of the officers having the jury in charge to the effect that the jury indulged in the use of intoxicating liquors only to a moderate degree and that they were in no respect under the influence of same.
We are of the opinion that the use of intoxicating liquors by the jury as shown by the uncontradicted evidence in this case was so excessive as to render all who partook of it absolutely incapable of that calm, dispassionate and impartial consideration of the case which the law demands. It would be a travesty upon the administration of justice to permit a verdict to stand where the jurors rendering it are subjected to influences so calculated to impair their reason and inflame their passions and prejudices. It would be impossible for jurors who indulged in' intoxicating liquors to the'extent shown in this record to bring to bear upon the law and the facts in the case that discriminating and impartial judgment required in the proper exercise of their functions as jurors. It is a matter of common knowledge, that the use of whiskey continuously and in large quantities and to excess stupefies the mental faculties and impairs the reason and judgment. No one who had drunk intoxicants to the extent shown by many of the jurors in this record could pass intelligently upon the issues in any case, much less in a case where one’s life hangs in the judicial balance.
For the error of the court in refusing to set aside the verdict on account of the misconduct of the jury in this particular alone the judgment must be reversed.
2. But it was also reversible error for the court not to set aside the verdict on account of facts developed since the trial in the nature of newly discovered evidence, under the rule announced by this court in Bussey v. State, 69 Ark. 545. In that case we held (quoting syllabus): “Where defendant was convicted of rape almost entirely upon the testimony of the prosecuting witness, who after the trial made an affidavit retracting her testimony, it was error to refuse a new trial upon the ground of newly discovered evidence.”
The jury would not have been warranted in convicting the defendant upon the testimony alone of the other witnesses. The testimony of the prosecutrix was essential to support the verdict. In view of the developments concerning her evidence, set forth in the statement, we are of the opinion that the appellant should have another opportunity to present his cause to jurors, who during the progress of trial and while deliberating upon their verdict, do not indulge in the excessive use of intoxicating liquors.
The cause is therefore reversed and remanded for a new trial.