(concurring specially). I concur in an affirmance of the judgment and of the order denying a new trial.
Appellant contends that the judgment and order should be reversed, and a new trial awarded him on account of: (1) Misconduct of the jury; and (2) erroneous instructions.
The only basis for the first ground are affidavits made by jurors and an affidavit of defendant’s counsel as to statements alleged to have been made to him by a juror. There is no contention that one or more of the jurors were induced to assent to the verdict by a resort to the determination of chance, and under our statute it is only in such case that the verdict of a juror may be impeached by the affidavit of jurors. See subdivision 2, § 7660, C. C. 1913. Not only does that seem to be the plain meaning of our statute, but that was the interpretation placed thereon by this court in Johnson v. Seel 26 N. D. 299, 144 N. W. 237.
In this case defendant made a motion for a new trial. In such motion no complaint was made of the court’s instruction to the jury. In other words, error in the' instructions was not assigned as a ground for a new trial. This being so, the error, if any will be deemed waived, and cannot be asserted in this court. State v. Glass, 29 N. D. 620, 151 N. W. 229.
While I believe that the two decisions cited above are determinative of the questions raised on this appeal, I deem it proper to say that, upon *348the record before us, it could in no event be said that the defendant was denied a fair trial.
BeonsoN, J., concurs.