(dissenting).
I dissent. There should be no injection of race into jury deliberations and the foreperson in this case had her will overcome by manifestations and accusations of racial prejudice. There can be no place in our system of American Jurisprudence for arriving at a verdict of either innocence or guilt by the intimidation of a juror through appeal of racial prejudice. This jury room became a room of bigotry, bias, and terror. This verdict was infected by racial considerations. Such cannot be in a free society. The heart of the jury process, impartial deliberation, was destroyed. It was an abomination of everything that this great country stands for. Appellant’s fundamental right to a fair trial and an impartial jury, rights guaranteed to him by the Fifth, Sixth, and Fourteenth Amendments, was taken from him by a thirteenth juror, racial prejudice.
Factually, the foundation of my dissent is formed in a properly verified affidavit of the foreperson of the jury. It follows:
Comes now Kalomera Stabnow and being first duly sworn, deposes and states as follows:
That I was a member and foreman of the jury which heard the case of the State of South Dakota vs. Mern Finney in Hot Springs, South Dakota, on July 28, 1982.[1] That I believe Mr. Finney should be granted a new trial because of juror misconduct in the case. There was extreme racial prejudice expressed throughout the jury deliberations. The other eleven jurors, all native americans, constantly accused me of trying to save a white person just because I was a white person. The jury was not looking at the facts in the case but basically considered the matter as an Indian-white issue between Victor Dreaming Bear and Mern Finney. Since we had not been able to reach agreement regarding the guilt or innocences [sic] of Mr. Finney, I suggested that we sleep on the matter and begin our deliberations again on the morning of July 29. The other jurors kept saying that they had to get home and that we had to make a decision that same night and they kept accusing me of being racially prejudiced. I was extremely tired and just did not have the strength to resist the pressure to vote for a guilty verdict. At no time was I convinced by the evidence of Mr. Finney’s guilt. I know it was wrong to vote for a guilty verdict when I did not believe the man to be guilty, but I just did not have the strength to resist the pressure from the other jurors or their accusations of my being racially prejudiced.
There were also two other jurors on the jury panel who did not agree on a verdict of guilty on all of the counts charged and *173they were also pressured by the remaining jurors to change their votes to guilty.
Dated this 4th day of August, 1982.
Sierned/Kalomera Stabnow
(Emphasis supplied.)
An examination of Federal Rule of Evidence 606(b), codified as SDCL 19-14-7, is vital to our academic endeavors. It states:
Except as otherwise provided by statute, upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes. (Emphasis supplied.)
What is extraneous prejudicial information and what is an outside influence improperly brought to bear upon any juror? Surely, racial prejudice is not permitted inside the courtroom, so it must come from the outside, Obviously, racial prejudice is prejudicial to any man’s or woman’s case and it is patently improper. I am for protecting jurors against annoying incidents and embarrassment. I realize that verdicts must have stability and that jurors must have freedom of deliberation, but likewise it is indispensable for a juror to keep his or her solemn oath to decide the case impartially under the evidence.2 SDCL 19-14-7, which is set forth above, embodies a major exception to the rule that jurors will not be able to function effectively if their deliberations are scrutinized in post-trial proceedings.
In State v. Levitt, 36 N.J. 266, 176 A.2d 465 (1961), the Supreme Court of New Jersey held that a trial judge did not abuse his discretion in setting aside a verdict on the grounds that it was contaminated with religious prejudice of a juror. Essentially, it was contended by the State of New Jersey, as it is now contended by the State of South Dakota, that the juror’s comments arose out of observations and legitimate deductions made during the trial of the case, i.e., it was not extraneous information. In ordering a new trial, the trial judge stated:
“There seems to be little doubt in this case this man’s religion [defendant is Jewish] was injected into the deliberations of this jury; that is corroborated. There seems to be little doubt that at least one person on that jury was affected, and it seems prejudicially so and it makes little difference that the infection was only slight so long as it is present.
* * * # sk
[T]he deliberations * * ⅜ should be free of taint of passion, prejudice or mistake.”
Levitt, 36 N.J. at 270, 176 A.2d at 467. Quoting from a 1957 New Jersey Supreme Court case, Wright v. Bernstein, 23 N.J. 284, 294-95,129 A.2d 19, 25 (1957), the New Jersey Court in Levitt, upheld the trial court:
The jury is an integral part of the court for the administration of justice and on elementary principles its verdict must be obedient to the court’s charge based solely on legal evidence produced before it and entirely free from the taint of extraneous considerations and influences. The parties to the action are entitled to have each of the jurors who hears the case impartial, unprejudiced and free from improper influences. (Emphasis supplied.)
In the case at bar, rank prejudicial and racial arguments were interjected by eleven Native American jurors to crunch down upon the one white person on the jury to convict. It was an improper influence and it tainted the jury’s verdict. The racial *174appeal to the foreperson of this jury, as reflected by her affidavit, was an appeal to violence.3 In People v. Malkin, 250 N.Y. 185, 201, 164 N.E. 900, 907 (1928), it was expressed:
Society may be endangered as much by the violence of its friends as of its enemies, and an appeal to prejudice as a factor in determination of guilt is, in the final analysis, an appeal to violence. The majesty of the law must remain unchallenged. It is threatened by each trial where there is a justified doubt of fairness and impartiality.
In United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2nd Cir.1973), the prosecutor’s summation, which included repeated references to colored people, their hair styles, and how they should be viewed as an entity separate and apart from themselves (white people) was held to introduce racial prejudice into the trial and denied the defendant’s constitutional right under the due process clause. In said case, at 157, the United States Second Circuit Court of Appeals stated: “Racial prejudice can violently affect a juror’s impartiality and must be removed from the courtroom proceeding to the fullest extent possible.” And that Court further expressed: “It negates the defendant’s right to be tried on the evidence in the case and not on extraneous issues.” (Emphasis supplied.) This case also mentions the general principle that convictions are to be overturned on Fourteenth Amendment grounds where racial prejudice is a major factor in the fibre of a trial and cites numerous federal decisions holding that a fair trial is a fundamental requisite of due process of law. In the case at bar, the affidavit of the foreperson should not be examined in a vacuum, it should be reviewed against the backdrop of the entire case.
In United States ex rel. Owen v. McMann, 435 F.2d 813, 818 at n. 5 (2nd Cir.1970), commenting upon United States v. McKinney, 429 F.2d 1019 (5th Cir.1970), cert. denied, 401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971), this rule was enunciated:
In short, the inquiry is not whether the jurors “became witnesses” in the sense that they discussed any matters not of record but whether they discussed specific extra-record facts relating to the defendant, and if they did, whether there was a significant possibility that the defendant was prejudiced thereby. (Emphasis in original.)
Here, the extra-record facts relating to appellant and this case were that this was an “Indian-white issue between Victor Dreaming Bear and Mem Finney” and that the foreperson “was a white person” trying to “save a white person,” namely, appellant. Appellant’s race was an improper jury consideration and there should be no injection of race into jury deliberations.
I next cite Tobias v. Smith, 468 F.Supp. 1287, 1291 (W.D.N.Y.1979), which interpreted Federal Rule of Evidence 606(b), codified as SDCL 19-14-7, and I quote:
There can be no quarrel with the proposition that the race of a defendant is an improper consideration for a jury, just as ethnic origin and religion are. Cf. United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2nd Cir.1973). There should be no injection of race into jury deliberations and jurors who manifest racial prejudice have no place in the jury room. Certainly, where a probability of such prejudice can be demonstrated, it would constitute sufficient grounds for ordering a new trial. See McKendrick, supra, at 159, and United States ex rel. Owen v. McMann, 435 F.2d 813 (2nd Cir.1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971), both of which discuss the “probability of prejudice” test. (Emphasis supplied.)
Under Rule 606(b) of the Federal Rules of Evidence, a court may receive evidence of the fact that extraneous prejudicial influences were improperly brought to the jury’s *175attention. Solace do I find in language of Smith v. Brewer, 444 F.Supp. 482, 490 (S.D. Iowa 1978):
[T]he Court does not suggest that the rule of juror incompetency embodied in Rule 606(b) should be applied dogmatically and in complete disregard of what is alleged to have occurred in the jury room. In McDonald v. Pless the Supreme Court admonished that “there might be instances in which such testimony of the juror could not be excluded without ‘violating the plainest principles of justice’ ” — an admonition particularly pertinent in criminal cases. 238 U.S. [264] 268-69, 35 S.Ct. [783] 785 [59 L.Ed. 1300]. Where, for example, an offer of proof showed that there was a substantial likelihood that a criminal defendant was prejudiced by the influence of racial bias in the jury room, to ignore the evidence might very well offend fundamental fairness.
Here, appellant was never permitted a hearing to present an offer of proof.
Whenever it comes to a trial court’s attention that a jury verdict may have been the result of any form of prejudice based on race, religion, gender or national origin, judges should be especially sensitive to such allegations and conduct an investigation to “ferret out the truth.” Morgan v. United States, 399 F.2d 93, 97 (5th Cir.1968), cert. denied 393 U.S. 1025, 89 S.Ct. 635, 21 L.Ed.2d 568 (1969). For even if only one member of a jury harbors a material prejudice, the right to a trial by an impartial jury is impaired. United States v. Booker, 480 F.2d 1310 (7th Cir.1973).
After Hour Welding v. Laneil Management, 108 Wis.2d 734, 739-40, 324 N.W.2d 686, 690 (1982). It is academically obvious that this case should be reversed and remanded with instructions to the trial court that it take evidence as to the jury’s verdict in this case to determine if the verdict was discolored, tainted, and infused with improper jury influences.4 Such evidence would also embrace whether a prospective juror did not tell the truth about prejudice or preconceived notions of guilt.5 A determination could be made if the verdict in which jurors participated was a nullity. People v. Leonti, 262 N.Y. 256, 186 N.E. 693 (1933). The scope of this state’s nonimpeachment rule, as announced by the majority decision, cannot escape the constitutional dimensions of appellant’s Sixth Amendment rights to confront witnesses, assistance of counsel, and to an impartial jury.6 Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). Art. VI, § 7, S.D. Const, provides that the defendant is entitled to trial by an impartial jury. “Not only should the minds of the jurors be without bias or prejudice, but they should be removed from the bias, prejudice and excitement of others.” State v. Belt, 79 S.D. 324, 328, 111 N.W.2d 588, 590 (1961), citing State v. Meservey, 53 S.D. 60, 65, 220 N.W. 139, 141 (1928), and State v. Demerly, 56 S.D. 65, 70, 227 N.W. 463, 465 (1929). See also, State v. Volk, 331 N.W.2d 67 (S.D.1983).
A sound principle of law cannot be sustained by longevity but survives as authority because of its appeal to reason and the conscience of man. Jurisprudence should not be fearful of reaching into a jury room and examining a verdict arrived at contrary *176to instructions in the case, instructions which strictly forbid the consideration of bias and prejudice. Justice need not recoil from a known wrong committed in the name of the law. If the majority opinion is authoritative and inviolable because of the erstwhile rubric that a jury may not impeach its verdict dating back to the common law of England and two centuries of established law in the United States, then I assert that upholding a conviction birthed by blatant prejudicial appeal in a jury room offends against the reason and conscience of man, and it is time to change the rule. Age will not fortify an inequity or legal wrong. If it did, the law would still sanction imprisonment for debt and hanging for the theft of a loaf of bread.
Racial prejudice is an exception falling clearly within Rule 606(b), supra. And the hour is upon the State of South Dakota to be a beacon to estop such encroachment upon fair trials.7 For surely, under our Federal Constitution, the State of South Dakota has the power and duty to administer its own system of criminal justice. But, just as surely, each state must conform to the Due Process Clause of the Fourteenth Amendment. Appellant was not afforded due process. Abhorrent to a free society was the menacing and unreflective process by which the jury verdict was determined, announced, recorded, and upheld by the trial court. The lantern of impartiality was extinguished.
. Although tried at Hot Springs, county seat of Fall River County, all jurors were drawn from Shannon County, South Dakota, situs of the alleged crime. Shannon County is attached to Fall River County for judicial purposes. According to the United States Census Bureau, 1980 Census, Shannon County has 10,574 American Indians and 717 Caucasians of which this author takes judicial notice. Appellant was a member of a minority race and the foreperson was a minority of one on the jury.
. Jury Instruction # 15 provided: “The jury are the sole judges of the facts and must determine what the facts are from the evidence, and only from the evidence in the case, guided by the rules of law as given to you by the Court in these instructions.”
. On the morning after the trial, the foreperson called the judge expressing that extreme' racial prejudice had been expressed throughout the jury deliberations by the eleven Native Americans on the jury and that she had been psychologically and mentally browbeaten.
. Contrary to Federal Rule of Evidence 606(b), the juror was never permitted to testify. No evidence was taken whatsoever. Thus, appellant was precluded from establishing a record. How will you ever expose the racial prejudice of a jury unless the door is opened to hear it? A due process hearing has been stonewalled.
. Jury Instruction # 6 on reasonable doubt concluded: “You should not in the consideration of this case search for a doubt, but you should in such consideration, uninfluenced by bias, prejudice, passion or sympathy, at ail times seek the truth." (Emphasis supplied.)
.This is not a guarantee of inconsequence. The Sixth Amendment of the first ten amendments to the Constitution of the United States, commonly known as the Bill of Rights, was won by the blood of the patriots in the American Revolution. Without impartial jury trials, jury trials are a mockery — a farce. The majority viewpoint not only in South Dakota, but in the United States, looks at the impeachment of a jury verdict as a visionary looks at a raindrop and visualizes a flood.
. See also, State v. McComsey, 323 N.W.2d 889, 895 (S.D.1982) (Henderson, J., dissenting), wherein I closed by expressing: “The most critical stage of a trial is the deliberation of the jury. It is the American system of justice at work. I would not suffer it to be denigrated.”