OPINION OF COURT.
The following is taken, verbatim, from the opinion.
WASHBURN, PJ.It is the claim of the defendant that the court erred in permitting the jurors to return a second verdict after the first verdict had been returned into and accepted by the court and the jury had been allowed to separate, and in receiving and considering the statements of the jurors for the purpose of impeaching said first verdict by showing an intention different from that disclosed by said verdict.
Our Supreme Court, in the syllabus in a recent case, determined that:
“A juror cannot, by affidavit, impeach his verdict * * * by showing an intention different from that disclosed by his verdict.” Long v. Cassiero, 105 OS. 123.
The above case involved a clear impeachment of the verdict.
Assuming that the statements from the jurors in this case were competent, we are of the opinion that the court was without power to permit the substitution of the second verdict for the first verdict. With the assent to the verdict as returned in open court, and the court’s acceptance of the verdict and discharge of the jury, the jury’s function with respect to the case is closed, and they cannot be recalled to alter or amend it.
It is stated that the jury was not “formally” discharged; but after the jury, in the presence of counsel on both sides, had returned its verdict in open court and the verdict had been read by the clerk and no objection was made thereto and no request to poll the jury was made, and the court entered the verdict on the trial docket, there was then no reason for the return of the jury for any further proceedings in the case. The statute (11457 GC.) provides that, under such circumstances, the jury “shall be discharged from the case”; they were “excused” from further court duty and allowed to disperse; they were not admonished in reference to the case, as would have been required by 11451 GC. if they had not been discharged, and they were not ordered to return for any further proceedings in the case; they were to report Monday morning for duty in other cases. It seems to us that there can be no question but that, in pursuance of said section, the jury were discharged from further duties in reference to the case.
The jury having been discharged from the case, it was error for the court to reconvene the jury and permit them to return a second verdict and enter judgment thereon. The circumstances warranted the setting aside of the first verdict and ordering a new trial. For such error, the judgment is reversed and the cause remanded with instructions to grant the motion for a new trial.
(Funk, J. and Pardee, J., concur.)