The rule in Keenan v. State, 8 Wis., 132, was established as long ago as 1858. A strong appeal was made to this court in Rowan v. State, 30 id., 129, in 1872, to change *398it; but the court refused to disturb it. What we might be disposed to do with it, were it res integra, is not material. The rule has prevailed too long to be questioned now.
And convictions in what are called capital cases cannot be sustained when the jury is permitted to separate during the trial, “ unless it appears that the separation of the jurors was not followed by improper conduct on their part, nor by any circumstances calculated to exert an improper influence on the verdict.”
We must confess that the exception appears to us more apparent than real. It is generally difficult to prove a negative. In this instance, there is peculiar difficulty in disproving misconduct of jurors; broader difficulty still in disproving any circumstances calculated to exert improper influence on their verdict.
Conceding the competency of the affidavits of the jurors themselves, bow are jurors to make it appear that they were guilty of no misconduct ? If they swear generally that they were not, they swear to a conclusion only, depending on their sense of what is improper; asking the court to be satisfied, because they are satisfied. Jurors are rarely, perhaps, willfully guilty of improper conduct to disturb their verdict. A well meaning juror who is unconsciously so guilty, will honestly deny it. An evil minded juror consciously so guilty, will be very apt to deny it. So that a juror’s denial of the conclusion can weigh little. And the forms of improper conduct are so various, that, it would be very difficult to deny them to the satisfaction of a court.
Circumstances calculated to exert improper influence on a verdict are so various and indefinite that it is hardly exaggeration to call them infinite. They may reach jurors consciously or unconsciously, directly or indirectly, in vast variety of ways, through their better or their worse qualities, in open court, in the closed j ury room, or at large. How is a negative of such, during the dispersion of a jury, to appear to the satisfaction of *399a court? We do do not say that it can not, but we confess that we do not see how.
In the present case, the learned judge of the circuit court took ever}7 precaution that could be taken, on the separation of the jury; but the separation, under the rule, was voluntary provocation of the necessity of almost impossible proof to uphold a verdict of guilty. And we think that, in such cases, the only safe course is to refuse to let the jury separate.
The affidavits of the jurors in this record, to support their verdict, state that in their separation they obeyed the instructions of the court not to converse respecting the trial, or to remain in the hearing of others discussing it, and that they said and did nothing to prejudice the prisoner, and that no circumstance occurred to exert improper influence on the verdict. And yet, this being all true, every juror may have gathered outside that there was a public belief of the prisoner’s guilt and a public desire for his conviction, and been influenced by it. It is worthy of notice that the jurors do not deny hearing expressions of opinion concerning the prisoner, or his guilt, or his trial.
The other affidavits go to show that the jury was well behaved generally, and appeared to be faithful to their duty. These can go for little. And we have already indicated our opinion that the affidavits before us do not make the negative appear with sufficient legal certainty, in a case involving the liberty of a prisoner for life.
We therefore answer to the first question reported by the judge of the circuit court for the decision of this court, that the separation of the jury is sufficient cause for setting aside the verdict and granting a new trial; and to the second question reported, that the affidavits are not sufficient in law to show that the prisoner was not prejudiced by the separation.