I dissent from the rule held in State v. Boykin, 40 Idaho 536, 234. Pac. 157; State v. Jester, 46 Idaho 561, 270 P. 417;State v. Farnsworth, 51 Idaho 768, 10 P.2d 295, and adhered to by the majority in the case at bar, to the effect that a defendant cannot, on a motion for a new trial, show, by the testimony of a juror, overt acts of misconduct of a fellow juror, or jurors.
It is well settled on grounds of public policy that a juror will not be heard to impeach his own verdict; that he will not be allowed to state what influenced him in voting for the verdict, or the ground upon which the verdict was based, or that the verdict resulted from a misunderstanding of the court's instructions. But there is a clear distinction between permitting a juror to state what caused him, or other *Page 542 jurors, to agree upon their verdict, and permitting a juror to state that another juror informed his fellows of what he knew about the case, other than what he learned during the trial of the case from witnesses and documentary evidence. For example, a juror might slip into a jury-room a false or otherwise inadmissible confession of a defendant, offered by the prosecution and rejected by the trial court, and pass it around among the other jurors to read. In such a case, a juror would not be permitted to testify that the false confession influenced him or his fellow jurors in arriving at a verdict, but on a motion for new trial, a juror ought to be permitted to state that such a paper was slipped into the jury-room and read by the jurors. It is then the duty of the trial court to determine whether such misconduct influenced the jury in reaching its verdict. Under the rule announced in the majority opinion, in any case where the jury received evidence out of court, either by the circulation among the jurors of a false and inadmissible confession, or otherwise, a defendant would not be permitted to show, by the testimony of any member of the jury, either that such a paper had actually been circulated among and read by all of the jurors, or that evidence of any nature had been received out of court by the jury.
The majority rule clearly and absolutely nullifies a statutory right vested in a defendant by section 19-2307, I. C. A., which provides: "Grounds for new trial — When a verdict has been rendered against the defendant the court may, upon application, grant a new trial in the following cases only: . . . . (2) When the jury has received any evidence out of court other than that resulting from a view of the premises. . . . ."
That affidavits in a criminal case, purporting to state facts constituting misconduct and not attempting to state what effect such alleged misconduct had upon the jury, does not come within the rule that a juror will not be heard to impeach his own verdict, see State v. McChesney, 114 Wash. 113, 194 P. 551;Perry v. Bailey, 12 Kan. 539; Woodward v. Leavitt,107 Mass. 453, 9 Am. Rep. 49; Mattox v. United *Page 543 States, 146 U.S. 140, 13 Sup. Ct. 50, 36 L. ed. 917; UnitedStates 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.