I concur with the majority opinion except on one point. The proposition that a juror will not be heard to impeach his verdict is sustained both by reason and authority. He cannot suggest the ground on which the verdict was based, that it resulted from a misunderstanding of the court's instructions or on a misapprehension of the evidence. Jurors are not allowed to state what influenced their action and resulted in their verdict. Such things essentially inhere in the verdict itself. Public policy, if nothing else, could not countenance a different rule. However, there is a clear distinction between permitting a juror to impeach his verdict, to say what caused him or other jurors to agree on their verdict, and in permitting a juror to testify that the jury received evidence out of court, in that a juror purported to inform his fellows of what he knew about the case, other than what he learned in the trial. In the latter case the juror is not permitted to testify that such additional evidence, the statements of the offending juror, influenced him or the jury in reaching a verdict. On a motion for a new trial, where such offensive conduct would be brought to light, the testifying juror is restricted to a statement of the alleged misconduct and the court determines whether such misconduct influenced the jury in reaching its verdict. It seems to me that the majority fail to distinguish between permitting a juror to impeach his verdict and in permitting him to testify to instances of misconduct.
The supreme court of Kansas, speaking through Mr. Justice Brewer, in Perry v. Bailey, 12 Kan. 539, said:
"Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because being personal it is not accessible to other testimony; it gives to the secret thought of one the *Page 547 power to disturb the expressed conclusions of twelve; its tendency is to produce bad faith on the part of a minority, to induce an apparent acquiescence with the purpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict. But as to overt acts, they are accessible to the knowledge of all the jurors; if one affirms misconduct, the remaining eleven can deny; one cannot disturb the action of the twelve; it is useless to tamper with one, for the eleven may be heard. Under this view of the law the affidavits were properly received. They tended to prove something which did not essentially inhere in the verdict, an overt act, open to the knowledge of all the jury, and not alone within the personal consciousness of one."
In Woodward v. Leavitt, 107 Mass. 453, 9 Am. Rep. 49, Mr. Justice Gray announced the rule to be:
". . . . that on a motion for a new trial on the ground of bias on the part of one of the jurors, the evidence of jurors as to the motives and influences which affected their deliberations, is inadmissible either to impeach or to support the verdict. But a juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind. So a juryman may testify in denial or explanation of acts or declarations outside of the jury-room, where evidence of such acts has been given as ground for a new trial."
The supreme court of the United States, in Mattox v. UnitedStates, 146 U.S. 140, 13 Sup. Ct. 50, 36 L. ed. 917, quoted the foregoing excerpts from the Kansas and Massachusetts courts, and commented on them as follows:
"We regard the rule thus laid down as conformable to right reason and sustained by the weight of authority. These affidavits were within the rule, and being material, their exclusion constitutes reversible error."
The supreme court of Washington, in the comparatively late case of State v. McChesney, 114 Wash. 113, 194 P. 551, stated the rule as follows: *Page 548
"Affidavits of jurors in a criminal case, purporting to state facts constituting misconduct, and not attempting to state what effect such alleged misconduct had on the jury, did not come within the rule that a juror will not be heard to impeach his own verdict."
See, also, United States v. Ogden, 105 Fed. 371; State v.Rambo, 69 Kan. 777, 77 P. 563; State v. Clark, 34 Kan. 289,8 P. 528; Harris v. State, 24 Neb. 803, 40 N.W. 317; State v.Parker, 25 Wash. 405, 65 P. 776; Leith v. State, 206 Ala. 439,90 So. 687.
C. S., sec. 6888, not only provides that the misconduct of the jury is a ground for a new trial, but it also provides one exception to the general rule that a juror will not be heard to impeach the verdict, in that where the verdict has been arrived at by a resort to chance such fact may be disclosed by a juror, and is a ground for a new trial. The fact that the law has provided one instance where a juror will be permitted to impeach a verdict, to say what caused him to arrive at his verdict, cannot be construed to mean that while the law provides misconduct of the jury as a ground for a new trial, instances of misconduct that do not inhere in the verdict cannot be shown by a juror. There is no place here for the application of the maxim "Expressio unius est exclusioalterius."
It is worthy of note also that C. S., sec. 6888, relates to new trials in civil actions. C. S., sec. 9017, sets forth the grounds for a new trial in a criminal action, one of the grounds being that the jury has received evidence out of court other than that resulting from a view of the premises. It is true that the law does not state how it may be shown that evidence was received other than as provided by law, but the law has recognized the right, and when evidence has been received out of court, surely the court should permit such misconduct to be shown in the most practical and effective manner, by affidavit or by the testimony of a juror. In my judgment, the construction placed on the statute by the majority is unreasonable, and I am unwilling to follow it. The effect of the majority opinion is that, while the statute *Page 549 has expressly provided that the receipt of evidence in other than the manner provided by law is a ground for a now trial, even when the misconduct is of such a character that it precludes every reasonable presumption that the verdict was obtained by lawful means, it cannot be shown by the members of the jury, the only persons who can show it.
I am authorized to say that Chief Justice William A. Lee concurs with me in this opinion.