concurring in the result of the opinion denying the Petition for Rehearing.
[¶ 12] I would deny the petition for rehearing but on grounds different than the majority.
[¶ 13] Unfortunately Allen v. Kleven, 306 N.W.2d 629, 634 (N.D.1981), was not cited to us until the petition for rehearing was filed. That may have been due to the fact the issue as to size of the jury was far from the major issue in the brief of the appellant or the appellee but it was the issue upon which this Court granted a new trial on appeal, even though the trial court denied a new trial on that ground while granting it on the sufficiency of the evidence. Nevertheless, since I am not only the one remaining member of the Allen v. Kleven Court, but actually wrote the opinion for the Court, I should have recalled it. *425Regrettably, I did not until the petition for rehearing.
[¶ 14] My concern is not solely or primarily that an opinion I authored be reversed. The facts here, as the majority notes, may be more compelling than Allen v. Kleven, and it is possible to distinguish that decision on its facts. Rather, after reconsideration, I am concerned by the precedent established by presuming prejudice under the harmless-error rule. As the majority recognizes, we have applied the harmless-error rule in most jury issues. In the instance we did presume prejudice, Larson v. Williams Elec. Coop., Inc., 534 N.W.2d 1 (N.D.1995), the error involved the exclusion of an entire class of jurors, not a reduction in the number of jurors. In Larson, I concurred specially, expressing my view that the decision had “limited value as precedent” and that the harmless-error rule was “alive and well.” Id. at 6.1 further observed:
Few errors, even with regard to the jury, require a new trial on the basis that to deny a new trial would be inconsistent with substantial justice. I am willing to join my colleagues in their statement, but the result does not indicate my willingness to broaden the definition of error which affects a substantial right of the parties.
Id. at 6. It is apparent from the majority’s rationale denying rehearing that I should have adhered to my view in Larson that “I would prefer to affirm.” Id. at 5.
[¶ 15] On the basis of this decision, I expect we will be urged to abandon our harmless-error analysis in other jury issues because it may be difficult to prove prejudice. I suggest that if, in this instance, the majority is correct that it is virtually impossible to show the prejudicial effect of seating a six-person jury rather than a nine-person jury, it is because there is in fact, without more, no prejudicial effect. To hold a reduction in number from nine to six jurors is, alone, prejudicial error, is, I submit, to cast doubt on that part of Article 1, Section 13 of the North Dakota Constitution, as amended in 1974, which provides that the Legislature “may determine the size of the jury for all other cases [other than a criminal charge for which the defendant may be confined for more than one year], provided that the jury consist of at least six members.” Subsequent to the constitutional amendment, the Legislature, in 1977, enacted N.D.C.C. § 28-14-03.1 stating that “[i]n all civil actions when a jury is impaneled, a jury must consist of six qualified jurors unless any party makes a timely written demand for a jury of nine.” See also N.D.R.Civ.P. 48(b).
[¶ 16] Thus a six-person jury is established by statute and by rule as the appropriate sized jury. Absent a claim that a six-person jury is constitutionally inadequate under the United States Constitution, a claim I do not understand is being made here, there is little to support the “substantial justice” standard employed by the majority.
[¶ 17] We have not previously employed that standard even in a criminal case where, in the face of a statute, N.D.C.C. § 29-22-02, requiring sequestration of the jury, the court denied the defendant’s request to sequester the jury. State v. Bergeron, 340 N.W.2d 51 (N.D.1983). On appeal we held:
An argument can be made that, absent a presumption of prejudice, the defendant may have difficulty to establish sufficient prejudice to require a new trial. We do not agree. For example, if a juror was exposed to the significant prejudicial publicity during a separation this could be grounds for a new trial. For this reason the trial court should prepare to sequester the jury in advance *426whenever a lengthy trial is anticipated. However, mere reliance upon NDCC § 29-22-02 without a showing of actual prejudice is insufficient.
Id. at 59. We concluded that in light of the failure to show prejudice “the trial court did not commit error in denying defendant’s motion to sequester the jury.” Id. I would apply the Bergeron standard here, and, if this were the only issue on appeal, I would grant the petition for rehearing and affirm the trial court’s denial of a new trial on that ground.
[¶ 18] But, in addition to the judgment as a matter of law which we reversed in our opinion, the other major issue on appeal involved the trial court’s conditional grant of Kelly’s motion for a new trial on the ground the evidence was insufficient to support the verdict. I would affirm the trial court’s order for a new trial on that ground, under the rationale set forth in Okken v. Okken, 325 N.W.2d 264 (N.D. 1982). Under that rationale, on the motion for new trial, the trial judge is entitled to weigh the evidence, the trial judge is not required to accept the truth of the evidence which supports the verdict but may instead consider all the evidence and judge the credibility of witnesses, and we will not reverse the trial court’s order for a new trial absent a manifest abuse of discretion. Here there was no manifest abuse of discretion in ordering a new trial on that ground. I would affirm the trial court and therefore deny the petition for rehearing.
[¶ 19] GERALD W. VANDE WALLE, C.J.