dissenting.
The majority’s reliance on State v. Callahan, supra, is misplaced. In Callahan it is clear that no reception of evidence was involved. The jury simply disregarded an instruction and talked about the fact that the defendant did not take the stand. The situation here is different. In addition to ignoring the judge’s instruction, the jury considered evidence which had been stricken. The jury therefore, received “... evidence not properly admitted during trial.”
The juror’s affidavit did not relate to his “subjective motives or mental processes”, as the terms are used in Rule 24.1(d). It related to his conduct. How else can one prove jury misconduct and its prejudicial effect? Now United States Supreme Court Justice, William Brennan, stated in State v. Kocio-lek, 20 N.J. 92, 118 A.2d 812 (1955):
“... The better reasoned decisions support the exclusion of jurors’ testimony as to their mental processes, not upon the discredited basis of the policies against self-stultification and avoidance of jury tampering, perjury or other fraudulent practices, but upon the sounder ground that, being personal to each juror, the working of the mind of any of them cannot be subjected to the test of other testimony, and therefore that such testimony should not be received to overthrow the verdict to which all assented, [citations omitted] Judge Jayne cogently observed in Pulitzer v. Martin S. Ribsam & Sons Co., 19 N.J.Misc. 233, 234, 18 A.2d 726, 727 (Sup.Ct.1941), that a verdict in essence represents ‘the merger of a variety of ideas, reflections and sentiments; a compound in which only the omniscient could identify the component parts and accurately ascribe to each its relative influence generating the ultimate product. No one but the jurors can tell what was put into it, and the jurors are not permitted to say.’
Where, however, jurors’ testimony goes, not to the motives or methods or processes by which they reached the ver-*283diet, but merely to the existence of conditions or the occurrence of events bearing on the verdict, that basis of policy does not exist, and this whether the condition happens or the event occurs in or outside of the jury room.” 118 A.2d at 816.
The trial court properly granted a new trial. See Stevenson v. State, 89 Tex.Cr.R. 143, 230 S.W. 174 (1921).
I would affirm.