Defendant assigned as error, among other grounds, the refusal of the trial court to permit him to show, upon motion for a new trial, by affidavits and testimony of some of the trial jurors, as showing misconduct of the jury, that after they had retired to the jury-room and during their deliberations, one of the jurors stated, in substance, that "he knew all about the case before he went into the jury-box; that there was nothing to it but murder"; and his harangue continued until one of his fellow-jurors threatened to report him to the judge, whereupon he *Page 543 desisted but several times voted for murder in the first degree.
T. Bailey Lee, Commissioner, following the concurring opinion of McCarthy, C.J., in State v. Abbott, 38 Idaho 61,213 Pac. 1024, 224 P. 791, holds that the affidavit of a juror is not admissible for the purpose of showing misconduct of the jury.
It is urged that Perry v. Bailey, 12 Kan. 539, Woodward v.Leavitt, 107 Mass. 453, 9 Am. Rep. 49, Mattox v. United States,146 U.S. 140, 13 Sup. Ct. 50, 36 L. ed. 917, and State v.McChensey, 114 Wn. 113, 194 P. 551, distinguish between affidavits showing overt acts and affidavits which state facts or matters which inhere in the verdict, reaching the conclusion that overt acts may be shown while matters which inhere in the verdict may not be.
The rule appears to be universal that the jury may not, by affidavit or otherwise, impeach its verdict. It is contended, however, that while a juror may not state what influence the overt act had on his mind he may state what overt acts took place, and it is for the judge to determine whether or not such overt acts were of such a nature as to probably have improperly influenced the jury.
It is a well known and conceded proposition that what may not be done directly may not be done indirectly. In the final analysis if a juror is permitted to state overt acts he is impeaching his verdict, because while he may not say that he was improperly influenced by such overt acts he is laying the foundation for the court to so state; this, therefore, constitutes an impeachment of his verdict and in the absence of a statute permitting it is not permissible. (State v. Stein,60 Mont. 441, 199 P. 278.)
"That, on the hearing of the motion for new trial, defendant tendered four of the members of the jury which had convicted him to prove that, while the jury was in the jury-room, deliberating for the purpose of arriving at a verdict, Vargas made the statement: 'I am going to join in the verdict' (of guilty without capital punishment), 'but, if the defendant was a white man, I would stay here until hell *Page 544 freezes over for acquittal. I would not, and I don't believe you would' (meaning the other jurors) 'convict the accused on that evidence, if he were a white man.'
"That he tendered to other witnesses, who had not served on the jury, to show that, just after the verdict had been found and the jury discharged, said Vargas made the following statement, to wit: 'I wasn't going to hang the jury for the sake of a damned negro, but, if he had been a white man' (meaning the defendant), 'I would have held out until hell froze over for acquittal.'
"That the testimony so offered was objected to by the district attorney on the ground that 'no testimony could be heard to impeach the verdict of the jury.' That counsel for defendant called the attention of the court to the fact that the testimony was not offered for the purpose of impeaching the verdict, but for the purpose of showing that the juror was incompetent, had answered falsely on his voir dire, and was biased and prejudiced against the accused, because he was a negro. That the objection was, however, sustained, and the bill reserved. Clearly, the purpose was to prove, by witnesses who had served on the jury, that one of their number, while the case was under submission, and consideration by them, had made a statement, in the presence of the other jurors, showing that he was incompetent, by reason of prejudice, to serve on the jury or participate in the verdict, and hence that the verdict which they and he agreed on was void and should be set aside; and to prove by other witnesses, nonjurors, that the same juror had made a similar statement, outside of the jury-room and after the finding of the verdict, thereby, in effect, destroying the verdict in the finding of which he had just participated. The impeachment of the verdict therefore goes back to the statement of one of the jurors, in the jury-room, before the finding of the verdict, and out of the jury-room, after the finding; and, under settled jurisprudence, is not admissible." (State v. Howard, 144 La. 91, 80 So. 213 (citing cases).)
Harper v. State, 16 Ala. App. 153, 75 So. 829, Keith v.State, 7 Okl. Cr. 156, 123 P. 172, and Overton v. State, *Page 545 7 Okl. Cr. 203, 114 P. 1132, 123 P. 175, distinguishPerry v. Bailey, supra.
In reaching this conclusion I have also examined the following cases which bear on different phases of the question involved: Hyde v. United States, 225 U.S. 347, Ann. Cas. 1914A, 614, 32 Sup. Ct. 793, 56 L. ed. 1114; Einung v. Schlopkohl,129 Minn. 9, 151 N.W. 273; State v. Rand, 170 Iowa, 25,151 N.W. 1078; State v. Brannon, 133 La. 1027, 63 So. 507; State v.Long, 201 Mo. 664, 100 S.W. 587; State v. Linn, 223 Mo. 98,122 S.W. 679; State v. Shearon (Mo.), 183 S.W. 293; State v.OBrien, 35 Mont. 482, 10 Ann. Cas. 1006 (note not on this point), 90 P. 514; People v. Sidwell, 29 Cal.App. 12,154 Pac. 290; Chicago, R.I. P. Ry. Co. v. Brown, 55 Okl. 173,154 Pac. 1161; People v. Kromphold, 172 Cal. 512, 157 P. 599;State v. Long, 93 S.C. 502, 77 S.E. 61; Sizemore v.Commonwealth, 189 Ky. 46, 224 S.W. 637; Hughes v. State,126 Tenn. 40, Ann. Cas. 1913D, 1262 (note not on this point), 148 S.W. 543; Douglas v. State, 58 Tex. Cr. 122, 137 Am. St. 930,124 S.W. 933; Green v. Terminal R. Assn. of St. Louis,211 Mo. 18, 109 S.W. 715; Patterson v. State, 63 Tex. Cr. 297,140 S.W. 1128; State v. Aker, 54 Wn. 342, 18 Ann. Cas. 972 (note not on this point), 103 P. 420; People v. Sprague, 217 N.Y. 373,11 N.E. 1077; State v. English, 41 S.D. 560,172 N.W. 116; State v. Lyle, 105 Wn. 435, 178 P. 468; State v.Bischoff, 146 La. 748, 84 So. 41; Phillips v. R.I. Co.,32 R.I. 16, 78 Atl. 342, 31 L.R.A., N.S., 930.
Most of the states hold such affidavits inadmissible for any purpose; Kansas, Iowa, Florida and Washington hold the other way. (Newcomb v. State (Okl. Cr.), 213 P. 900; State v.Gilliland, 187 Iowa, 794, 174 N.W. 496; State v. Wynne,156 La. 938, 101 So. 273; State v. Aker, 54 Wn. 342, 18 Ann. Cas. 972, 103 P. 420; State v. Parker, 25 Wn. 405, 65 P. 776.)
Some cases are based on a statute. (Osborne v. State,96 Ark. 400, 132 S.W. 210; Esquivel v. State, 98 Tex. Cr. 125,246 S.W. 399; Fawvor v. State (Tex. Cr.), 265 S.W. 160.)
I am authorized to say that Budge and Taylor, JJ., concur *Page 546 with me in the above and the trial court, therefore, did not err, and the judgment should be affirmed, and it is so ordered, the opinion of T. Bailey Lee, Commissioner, above set forth being hereby adopted as the opinion herein.