(dissenting).
On this appeal defendant assigns 12 alleged errors for reversal. I agree with the majority opinion that 11 of them establish no ground for reversal. However, I disagree and respectfully dissent from the holding, “Because of private communications between the trial judge and a juror we reverse and remand the case for a new trial.”
*760I. This claimed ground for reversal was first raised in defendant’s motion for new trial. Evidence in relation thereto was submitted many weeks after the verdict.
The record reveals selection of the jury and two alternates extended over the entire day of May 5, 1975. At 5:20 P.M. the fourteen were sworn “to well and truly try the issues joined in this case, and a true verdict render upon the evidence introduced and in accordance with the instructions of this Court.” They were properly released to appear the next morning at 9:00 A.M.
At the hearing on defendant’s motion for new trial, defendant’s counsel, one of whom had entered his appearance after the verdict, offered the testimony of several members of the jury. Juror Craig Caslavka, a chemist, was examined at rather great length regarding the events of the next morning, May 6. He testified that after the jurors were called and seated in the jury box and everyone else was in the courtroom, Judge Degnan came over and asked him to step down. He did so and then a conversation took place near the courtroom door. He related the Judge inquired concerning his relationship to Greg Caslavka. He stated Greg was his brother who had been tried on a murder charge approximately three years earlier in Linn County. He indicated this would not impair his ability to be a fair and impartial juror. Craig and his family had a strained relationship with Greg. Craig had had no contact with Greg for more than three years previously. He knew nothing about Greg’s case. Other jurors testified they observed the Judge and Craig in conversation a short distance from the jury box. They were unaware of what was being said. Thereafter Craig resumed his seat in the jury box and the actual trial commenced. It extended for a period of 10 days.
The motion for new trial alleged the court erred by having the private conversation with juror Caslavka and that counsel had not been given notice prior thereto. In addition to Caslavka’s testimony that all were present in the courtroom, it is evident counsel and defendant were in the courtroom prior to the jurors taking their seats. Counsel could observe the incident the same as the jurors.
The obvious purpose of Judge Degnan’s visit with Caslavka was to determine whether prior trial of his brother for murder would affect his ability to be fair and impartial—a fundamental aspect of a fair trial. State v. Cowman, Iowa, 212 N.W.2d 420, 425.
This is not a case where there are indications the trial court by its conduct conveyed a belief in the guilt or innocence of the accused or acted to disparage her in the eyes of the jury. State v. King, Iowa, 256 N.W.2d 1; State v. Larmond, Iowa, 244 N.W.2d 233; State v. Kimball, Iowa, 176 N.W.2d 864. Also see In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942, 946; Offutt v. United States, 348 U.S. 11, 17, 75 S.Ct. 11, 15, 99 L.Ed. 11, 18. Nor is this a case where the judge has improperly injected himself into the jury deliberation process. Maier v. Illinois Central Railroad Company, Iowa, 234 N.W.2d 388, 395; State v. Snyder, Iowa, 223 N.W.2d 217; State v. Grady, Iowa, 183 N.W.2d 707; Daniels v. Bloomquist, 258 Iowa 301, 138 N.W.2d 868; State v. Register, 253 Iowa 495, 112 N.W.2d 648; State v. Mims, 306 Minn. 159, 235 N.W.2d 381.
Judge Degnan’s ruling on defendant’s motion for new trial included:
“The allegations going to the violation of 777.19 of the 1975 Code of Iowa is [sic] misleading. During a recess in the trial the two attorneys for the defendant discussed with the Court informal information that one of the jurors had a brother who was or had been tried for murder. Counsel for the defendant and counsel for the State being so informed did not request to make a record nor have the juror removed in favor of one of the two alternates, nor was there any objection by either party and there appears no basis here for which a new trial should be granted. Defendant’s case was not weakened nor were her interests harmed.”
*761Counsel for defendant were apparently not disturbed as they did not ask that an alternate juror be substituted for Caslavka. They refrained from moving for a mistrial because the Judge visited with the juror in their absence and that of defendant. Their conduct clearly indicates a willingness to take a chance on a favorable verdict. Thus they waived the errors now claimed. State v. Phillips, Iowa, 226 N.W.2d 16, 19; Pose v. Roosevelt Hotel Company, Iowa, 208 N.W.2d 19, 31 and citations.
A party cannot sit by and fail to avail himself of legal procedures to secure a fair trial and later raise the same procedures as grounds for a new trial. State v. Johnson, Iowa, 243 N.W.2d 598, 606; State v. Curtis, Iowa, 192 N.W.2d 758, 759.
Additionally, a party may not sit by and permit the court to commit inadvertent error without protest and then complain for the first time in a motion for new trial. State v. Jewett, Iowa, 219 N.W.2d 559, 560.
In State v. Youngbear, Iowa, 203 N.W.2d 274, 278, we state:
“It is sound law and logic that a party may not sit by and permit the court to commit inadvertent error without protest, and then complain for the first time in his motion for a new trial or in the appellate court. State v. Jensen, 245 Iowa 1363 at 1371, 66 N.W.2d 480 at 484.”
The other conversation which the majority opinion properly describes as an exchange of pleasantries was no more than that. Caslavka, exalted ruler of the Elk’s Lodge, testified he saw Judge Degnan in the large Elk’s Waterloo dining room two or three times eating lunch with his court reporter or the bailiff. He emphatically denied ever sitting with the Judge or ever making any mention of the case. As pointed out by the majority opinion a mere exchange of pleasantries is not error. Appeal counsel are indeed reaching when they infer improper conduct by the Judge at the Elk’s Club.
II. Serious doubt is established in the record as to admissibility of alleged conversations by jurors during their deliberation. When such evidence was offered the assistant county attorney objected to its admissibility and relied on our holding in State v. Berch, Iowa, 222 N.W.2d 741, 747, where we state:
“We have repeatedly held trial courts have broad discretion in determining whether evidence of claimed jury misconduct justifies a new trial. State v. Houston, 209 N.W.2d 42, 44 (Iowa 1973); State v. Jackson, 195 N.W.2d 687 (Iowa 1972).
“In State v. Brown, 253 Iowa 658, 671, 113 N.W.2d 286, 294, this court said:
“ ‘We have frequently held it is not competent to show by statements of jurors what influenced the verdict. That is a matter of opinion which inheres in the verdict. Accordingly it may not be shown in such manner, to avoid the verdict, that a juror did not assent to it, misunderstood the court’s instructions or the testimony, was unduly influenced by statements of fellow jurors, was mistaken in his calculations or judgment, or other matters resting alone in the juror’s breast. These all inhere in the verdict.’ (Emphasis supplied.)”
See also Anderson v. Goodyear Tire & Rubber Company, Iowa, 259 N.W.2d 814, (Filed November 23, 1977), and citations.
The trial court sustained the objection after which defendant’s counsel made an offer of proof. One or two of the ex-jurors testified that in response to an inquiry of how long they would be kept out to deliberate Caslavka said, “I know Judge Degnan and he hates hung juries. He will let you hang for days if you don’t make a decision.” They also testified the statement had no effect on their decision making. Caslavka testified, “I don’t think I made that statement.” At least six of the ex-jurors had not heard such a statement. The record made in the form of an offer of proof demonstrates the wisdom of the well-established principles set out in State v. Berch, supra, and the trial court’s ruling.
Full discussion by the jurors during deliberation and reaching of the verdict no doubt came as directed by the court in instructions numbered 22 and 23.
*762“Instruction No. 22. In passing upon the issues in this case you should be governed solely by the evidence and these instructions. You should not allow yourselves to be swayed by sympathy, passion or prejudice. At the commencement of this case you were admonished by the Court that during the trial of this case you were not to permit any communication to come to your atténtion from any source, public or private, concerning any matter relative to the trial of this case for the reason that it might consciously, or unconsciously, influence your verdict. You have taken your oath to decide the issues in this case solely on the evidence submitted for your consideration in this court room, and the instruction of the Court. Let your verdict be the result of a fair, dispassionate consideration of all the evidence and the instructions given you by the Court.
“Instruction No. 23. Upon retiring at the close of the case your first duty is to elect a foreman. The foreman acts as chairman. The chairman’s duty is to see that discussion is carried on in an orderly and proper fashion; that the issues are fully and freely discussed; and that every juror is given an opportunity to express his views. When ballots are to be taken, the chairman will see that it is done, and will sign the form of verdict which is in accord with your decision.
“The attitude of jurors at the outset of their deliberations is important. It is seldom helpful for a juror, upon entering the jury room, to announce an emphatic opinion in a case, or a determination to stand for a certain verdict. When a juror does that at the outset individual pride may become involved, and the juror may later hesitate to recede from an announced position even when shown it is incorrect. You are not partisans, you are judges — judges of the facts. Your sole interest is to ascertain the truth.”
Evidence of defendant’s guilt was substantial. The court carefully submitted all issues raised by the evidence, including insanity and self-defense. While her trial was not perfect it was fair and that is all she was entitled to. State v. Webb, Iowa, 244 N.W.2d 332, 333; State v. Conner, Iowa, 241 N.W.2d 447, 465; State v. Kelsey, Iowa, 201 N.W.2d 921, 927.
I find no abuse of the trial court’s discretion in overruling defendant’s motion for new trial.
I would affirm.