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  • Thomas M. Hyde and C.A. Zaring, for plaintiffs in error. The evidence of misconduct on the part of one of the jurors was sufficient to warrant a new trial. Perry v. Bailey, 12 Kan. 539; Johnson v. Husband, 22 Kan. 277; Wright v. Ill. Co., 20 Ia. 195; Harris v. State, 24 Nebr. 803, 40 N.W. 317; State v. Rambo, (Kan.) 77 P. 563. The Kansas statute is practically the same as that of Wyoming, 7548 C.S. Where prejudice apparently resulted from improper statements by jurors while deliberating a new trial should be granted, 16 C.J. 2662 pp. 1672-1674; Peiffer v. Commonwealth, 15 Pa. 486; Commonwealth v. Fisher, Pa. 75 A. 204; Anchicks v. State, 6 Tex. App. 524; Mitchell v. State, (Tex.) 36 S.W. 367. Affidavits have been received to show: (1) Misconduct and improper remarks by officers in charge: Nelms v. State, 21 Miss. 500. (2) That newspapers were introduced into the jury room and read. Mattox v. U.S., 146 U.S. 140. (3) That an outsider offered a bribe to a juror. Mathis v. State, 18 Ga. 343. State v. Woods, 30 P. 520. The courts recognize a presumption of prejudice from certain misconduct. Snow v. State, 20 A.L.R. 1181. We believe the affidavit of Woodruff Gwynn was sufficient to create a presumption of prejudice. McKanan v. Baltimore Co., (Pa.) 72 A. 251; Yung Chung v. State, (Ariz.) 136 P. 631; Wiggin v. Plumer, 31 N.H. 251; Jewsburg v. Sperry, 85 Ill. 56. W.O. Wilson, Attorney General, and John Dillon, Special Attorney General for defendant in error. The general ruling is that in criminal cases affidavits of jurors impeaching their verdict will not be received or considered. 27 R.C.L. 896. R.R. Co. v. Smith, 155 P. 233; Bank v. Ross, 152 P. 1113; Jolly v. Doolittle, (Ia.) 149 N.W. 890; Hyde v. U.S. 32, Sup. Ct. 808. Exceptions are noted where the affidavits show facts not inherent in the verdict itself. The alleged misconduct must be such as to warrant the belief that the fairness of the trial was impaired, 16 R.C.L. 312; Callahan v. Railway Co., 158 Fed. 988; Mattox v. U.S., 146 U.S. 140-148. The Gwynn affidavit was mere hearsay and should not have been received, 27 R.C.L. 899, but at most it merely shows that the prejudice of the juror was brought about from the evidence at the trial.
Judges
  • RINER, Justice. BLUME, Chief Justice. BLUME, Chief Justice.
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citation codes
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Attorney(S)
  • Thomas M. Hyde and C.A. Zaring, for plaintiffs in error. The evidence of misconduct on the part of one of the jurors was sufficient to warrant a new trial. Perry v. Bailey, 12 Kan. 539; Johnson v. Husband, 22 Kan. 277; Wright v. Ill. Co., 20 Ia. 195; Harris v. State, 24 Nebr. 803, 40 N.W. 317; State v. Rambo, (Kan.) 77 P. 563. The Kansas statute is practically the same as that of Wyoming, 7548 C.S. Where prejudice apparently resulted from improper statements by jurors while deliberating a new trial should be granted, 16 C.J. 2662 pp. 1672-1674; Peiffer v. Commonwealth, 15 Pa. 486; Commonwealth v. Fisher, Pa. 75 A. 204; Anchicks v. State, 6 Tex. App. 524; Mitchell v. State, (Tex.) 36 S.W. 367. Affidavits have been received to show: (1) Misconduct and improper remarks by officers in charge: Nelms v. State, 21 Miss. 500. (2) That newspapers were introduced into the jury room and read. Mattox v. U.S., 146 U.S. 140. (3) That an outsider offered a bribe to a juror. Mathis v. State, 18 Ga. 343. State v. Woods, 30 P. 520. The courts recognize a presumption of prejudice from certain misconduct. Snow v. State, 20 A.L.R. 1181. We believe the affidavit of Woodruff Gwynn was sufficient to create a presumption of prejudice. McKanan v. Baltimore Co., (Pa.) 72 A. 251; Yung Chung v. State, (Ariz.) 136 P. 631; Wiggin v. Plumer, 31 N.H. 251; Jewsburg v. Sperry, 85 Ill. 56. W.O. Wilson, Attorney General, and John Dillon, Special Attorney General for defendant in error. The general ruling is that in criminal cases affidavits of jurors impeaching their verdict will not be received or considered. 27 R.C.L. 896. R.R. Co. v. Smith, 155 P. 233; Bank v. Ross, 152 P. 1113; Jolly v. Doolittle, (Ia.) 149 N.W. 890; Hyde v. U.S. 32, Sup. Ct. 808. Exceptions are noted where the affidavits show facts not inherent in the verdict itself. The alleged misconduct must be such as to warrant the belief that the fairness of the trial was impaired, 16 R.C.L. 312; Callahan v. Railway Co., 158 Fed. 988; Mattox v. U.S., 146 U.S. 140-148. The Gwynn affidavit was mere hearsay and should not have been received, 27 R.C.L. 899, but at most it merely shows that the prejudice of the juror was brought about from the evidence at the trial.
Judges
  • RINER, Justice. BLUME, Chief Justice. BLUME, Chief Justice.
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Smart Summary

Summary of Opinion — Lee Morris (No. 1518, September 25, 1928)

Factual and Procedural Background

Lee Morris was convicted in the District Court of Big Horn County of the crime of statutory rape. After the jury returned its verdict, Morris filed a motion for a new trial supported by affidavits alleging misconduct by one of the jurors during jury deliberations. The trial court overruled the motion. Morris brought error to this Court challenging the trial court's ruling denying a new trial. The bill of exceptions submitted to this Court contained only the jury verdict, the judgment, the motion for a new trial with supporting affidavits, the proceedings on the motion, and the order disposing of it; the evidence at trial was not included in the record before this Court.

Legal Issues Presented

  1. Whether the trial court erred in denying a motion for a new trial based on alleged misconduct of a juror (including an alleged statement that the juror had been offered $100 by "them"—meaning the defendant or someone on his behalf—to hang the jury).
  2. Whether affidavits of jurors (and an affidavit of a third person recounting a juror's unsworn statements) are admissible to impeach a jury verdict or to show juror bias sufficient to require a new trial.
  3. Whether a defendant seeking a new trial on grounds of juror misconduct must show that he was not connected with, or did not authorize, the alleged misconduct.

Arguments of the Parties

Plaintiff in Error (Lee Morris)

  • The motion for a new trial was supported by affidavits from several jurors stating that, during deliberations, one juror said he had been offered $100 by "them" (meaning the defendant or someone acting for him) if he would hang the jury; some jurors stated they were influenced by that remark or believed other jurors were so influenced.
  • Affidavit of Woodruff Gwynn alleged that the juror had displayed intense prejudice against Morris and had said prior to deliberations that he was "for convicting the Son of a B" and would "stick until hell froze over" to convict—offered to show juror bias existing before trial.
  • Plaintiff in error's counsel cited multiple authorities arguing that misconduct by jurors or introduction of outside matter into the jury room warrants a new trial.

Defendant in Error (State)

  • The State's position, as presented by counsel, emphasized the general rule that affidavits of jurors impeaching their verdict will not be received or considered.
  • Counsel argued that exceptions exist only where affidavits show facts not inherent in the verdict and that the Gwynn affidavit was hearsay (a relayed unsworn statement of a juror) and therefore inadmissible; at most it showed prejudice arising from the trial evidence.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Perry v. Bailey, 12 Kan. 539 Cited (by counsel and later referenced by Chief Justice Blume) as authority favoring reception of juror affidavits in certain circumstances (Justice Brewer's approach). Mentioned in counsel's authorities and in a concurrence expressing doubt about the strict exclusionary rule; the Court did not adopt it and instead followed Wyoming precedent excluding juror affidavits.
Johnson v. Husband, 22 Kan. 277 Cited by counsel as authority supporting the proposition that juror misconduct can warrant a new trial. Referenced as part of counsel's supporting authorities; not specifically relied upon in the Court's dispositive analysis.
Wright v. Ill. Co., 20 Ia. 195 Cited by counsel as supporting authority concerning juror misconduct and new trials. Referenced in counsel's brief; not specifically relied upon by the Court in its ruling.
Harris v. State, 24 Nebr. 803, 40 N.W. 317 Cited by counsel as supporting authority on juror misconduct/new trial principles. Referenced in counsel's brief; not specifically relied upon by the Court.
State v. Rambo, (Kan.) 77 P. 563 Cited by counsel as analogous authority on juror misconduct/new trial. Referenced in counsel's brief; not specifically relied upon by the Court.
Peiffer v. Commonwealth, 15 Pa. 486 Cited by counsel as authority favoring new trial where juror statements during deliberations caused prejudice. Included among counsel's cited cases; not specifically applied in the Court's reasoning.
Commonwealth v. Fisher, Pa. 75 A. 204 Cited by counsel as authority supporting new trials for juror misconduct. Referenced in counsel's brief; not relied upon by the Court.
Anchicks v. State, 6 Tex. App. 524 Cited by counsel as authority concerning juror misconduct/new trial. Referenced in counsel's brief; not specifically applied by the Court.
Mitchell v. State, (Tex.) 36 S.W. 367 Cited by counsel supporting the new-trial remedy where jury misconduct occurs. Referenced by counsel; not specifically relied upon by the Court.
Nelms v. State, 21 Miss. 500 Cited by counsel as an instance where affidavits were received to show misconduct by officers in charge. Referenced in counsel's list of authorities; not relied upon in the Court's analysis.
Mattox v. U.S., 146 U.S. 140 Cited by counsel (and by State counsel) for the proposition that newspapers (outside matter) introduced into the jury room are improper; also cited regarding exceptions and when affidavits showing facts not inherent in the verdict may be considered. Mentioned in briefs and referenced by State counsel as an important federal authority on when juror-related evidence may justify relief; the Court cited Mattox among authorities illustrating the rule but relied on Wyoming precedents to resolve the case.
Mathis v. State, 18 Ga. 343 Cited by counsel as authority concerning an outsider offering a bribe to a juror. Referenced in counsel's brief; not specifically applied by the Court.
State v. Woods, 30 P. 520 Cited by counsel as authority on juror-bribe type misconduct. Included in counsel's authorities; not relied upon in the Court's opinion.
Snow v. State, 20 A.L.R. 1181 Cited by counsel as recognizing a presumption of prejudice from certain misconduct. Referenced by counsel; not directly applied by the Court in reaching its disposition.
McKanan v. Baltimore Co., (Pa.) 72 A. 251 Cited by counsel as supporting a presumption of prejudice from juror misconduct. Referenced in counsel's brief; not specifically relied upon by the Court.
Yung Chung v. State, (Ariz.) 136 P. 631 Cited by counsel as authority on presumption of prejudice from juror misconduct. Referenced in counsel's brief; not applied by the Court.
Wiggin v. Plumer, 31 N.H. 251 Cited by counsel as authority on presumption of prejudice. Mentioned by counsel; not relied upon by the Court.
Jewsburg v. Sperry, 85 Ill. 56 Cited by counsel in connection with presumption of prejudice from misconduct. Referenced by counsel; not used as a basis for the Court's ruling.
R.R. Co. v. Smith, 155 P. 233 Cited by State counsel as part of authorities establishing that juror affidavits impeaching a verdict will not be received. Included in State counsel's authorities supporting the exclusionary rule; the Court followed Wyoming precedents adopting the same rule.
Bank v. Ross, 152 P. 1113 Cited by State counsel in support of the general rule excluding juror affidavits. Referenced by State counsel; the Court's holding is consistent with this general rule.
Jolly v. Doolittle, (Ia.) 149 N.W. 890 Cited by State counsel as authority on exclusion of juror affidavits. Included among State counsel's authorities; reflected in the Court's adherence to the exclusionary rule.
Hyde v. U.S. 32, Sup. Ct. 808 Cited by State counsel as authority on the rule excluding juror affidavits (listed among authorities). Mentioned in State counsel's brief; Court adhered to the exclusionary rule consistent with such authorities.
Callahan v. Railway Co., 158 Fed. 988 Cited by State counsel as demonstrating that alleged misconduct must warrant belief that fairness of trial was impaired. Referenced in State brief; the Court discussed the necessity for misconduct to be sufficient to impair fairness but resolved the case on established Wyoming precedent and on the absence of a showing that defendant was not connected with the alleged misconduct.
Pullman Company v. Finley, 20 Wyo. 456, 125 P. 380 Cited by the Court as a Wyoming case where affidavits of jurors were held not to be receivable to impeach a verdict; it references earlier Wyoming decisions on the point. The Court relied on Pullman Company v. Finley as illustrative of the settled Wyoming rule that juror affidavits cannot be received to impeach verdicts and used it to dispose of the primary ground of the motion.
Bunce v. McMahon, 6 Wyo. 24, 41, 42 P. 23 Cited by the Court as authority holding that affidavits of jurors cannot be received to impeach their verdict. Described as a settled rule in Wyoming and applied by the Court to reject juror affidavits offered to impeach the verdict.
Gustavenson v. State, 10 Wyo. 300, 68 P. 1006 Cited by the Court for the proposition that juror testimony cannot be received to impeach a verdict and that unsworn statements repeated as hearsay in a third person's affidavit must be rejected. Applied by the Court to conclude the juror-affidavit evidence (and the Gwynn hearsay affidavit) was inadmissible to impeach the verdict.
McDonald v. Pless, 238 U.S. 264, 35 Sup. Ct. Rep. 783, 59 L.Ed. 1300 Cited by the Court as illustrating the rule of the Federal Supreme Court and its application by lower federal courts concerning juror-impeachment evidence. Referenced by the Court as part of the broader body of authority supporting exclusion of juror affidavits; used illustratively, not as the sole basis for the decision.
Stout v. United States, (C.C.A.) 227 Fed. 799 Cited by the Court (with Stewart) as illustrative of federal lower-court treatment of the Supreme Court's rule on juror affidavits. Referenced by the Court to show consistent application of the exclusionary principle in federal courts.
Stewart v. United States, (C.C.A.) 300 Fed. 769 Cited by the Court alongside Stout as illustrative federal authority. Referenced by the Court in discussing the broader application of the federal rule.
Keith v. State, 7 Okla. Cr. 156, 123 P. 172 Cited by the Court as a case providing a full review of the point regarding juror affidavits and impeachment of verdicts. Referenced by the Court as supportive secondary authority consistent with the exclusionary rule.
State v. Guillory, 163 La. 98, 11 So. 612 Cited by the Court as a recent case to the same effect (excluding juror affidavits). Referentially cited as consistent authority; the Court noted its alignment with the exclusionary rule.
State v. Wilson, 42 Wn. 56, 84 P. 409, 7 Ann. Cas. 418 Cited by the Court for the principle that a defendant seeking relief for juror misconduct should at least disclaim any connection with the alleged attempted bribery or misconduct; one must show innocence and lack of participation to obtain relief. Applied by the Court as an additional, independent ground for denying the new trial because there was no showing in the record that Morris was not connected with the juror's alleged misconduct.
Cogswell v. State, 49 Ga. 103 Cited in State v. Wilson excerpt as an example of cases holding a complaining party must show innocence and lack of timely knowledge of circumstances to obtain relief. Used in the Wilson discussion quoted by the Court; the Court relied on the Wilson principle (and its cited authorities) to require that the accused disclaim connection with the alleged misconduct.
State v. Nash, 45 La. Ann. 1137, 13 So. Rep. 732, 734 Cited in the Wilson discussion as authority for the requirement that the complaining party show nonparticipation in misconduct. Part of the authorities supporting the Wilson principle the Court applied to the case facts.
Clough v. State, 7 Neb. 320 Cited in Wilson as another example of the requirement to show innocence of the complaining party. Referenced in the Wilson discussion and relied upon indirectly by the Court in concluding Morris made no such showing.
U.S. v. Salentine, 8 Bliss. (U.S.) 404, 27 Fed. Cas. No. 16,213 Cited in Wilson for the proposition that if the complaining party participates in misconduct, relief by new trial will not be granted. Referenced within the Wilson passage quoted by the Court and used to support the requirement that the defendant disclaim connection with misconduct.

Court's Reasoning and Analysis

The Court reviewed the limited record (no trial evidence was before it) and identified that the motion for a new trial rested entirely on alleged juror misconduct during deliberations. The affidavits presented in support included jurors' own affidavits stating that one juror declared he had been offered $100 by "them" (allegedly meaning the defendant or someone acting for him) to hang the jury; some jurors stated they were influenced by that remark or believed others were influenced. The motion also relied on an affidavit of Woodruff Gwynn recounting statements by the same juror indicating preexisting bias prejudging defendant guilty.

The Court first addressed the affidavits of jurors alleging the bribery statement. It relied on established Wyoming precedent (citing Pullman Company v. Finley and earlier Wyoming cases including Bunce v. McMahon and Gustavenson v. State) for the settled rule that affidavits of jurors cannot be received to impeach their verdict. The Court treated those precedents as logically dispositive of the first ground of Morris's motion and observed supporting federal and other authorities illustrating the same principle (including McDonald v. Pless and other federal cases).

The Court then articulated an independent ground for denial: the record contained no showing that Morris was not connected with the juror's alleged misconduct. Citing State v. Wilson and authorities quoted therein, the Court held it is imperative that a defendant seeking relief for juror misconduct demonstrate he was not involved in, or had knowledge of, the circumstances that produced the misconduct; absent such a showing, relief is not appropriate.

Finally, addressing the second ground (the Gwynn affidavit), the Court cited Gustavenson v. State for the rule that the testimony of a juror cannot be received to impeach the verdict and that unsworn statements repeated as hearsay in a third person's affidavit must be rejected. The Court applied that rule to conclude that the Gwynn affidavit (being an unsworn third-party repetition of a juror's statements) was inadmissible for the purpose of impeaching the verdict.

On the combined bases—the exclusionary rule barring juror affidavits to impeach a verdict and the absence of a showing that Morris was not connected with the alleged misconduct—the Court found no error in the trial court's denial of the motion for a new trial.

Holding and Implications

Holding: The judgment of conviction is AFFIRMED.

Implications: The direct effect is that Lee Morris's conviction for statutory rape is upheld and the trial court's denial of his motion for a new trial is sustained. The Court applied established Wyoming precedent excluding juror affidavits offered to impeach a verdict and required a showing that the defendant was not connected with alleged juror misconduct before granting relief. The opinion does not announce a change in the law; Chief Justice Blume expressed doubt about the strict rule and noted a different approach in Perry v. Bailey, but stated that any modification should be made by the legislature. The decision thus leaves intact the existing rule as applied to this case and does not purport to establish a broader new precedent.

Disposition

Affirmed.

Concurrences: BLUME, C.J., and KIMBALL, J., concur. Chief Justice Blume appended remarks expressing personal doubt about the strict exclusionary rule but deferred to prior decisions and the legislature for any change.

Show full summary ...

MORRIS v. STATE

RINER, Justice.

This case is before the court upon proceedings in error instituted by the plaintiff in error Lee Morris, to review his conviction of the crime of statutory rape in the District Court of Big Horn County. After the jury's verdict had been received, Morris filed a motion for a new trial, supported by affidavits. This was, by the court, overruled. The only error assigned and argued for our consideration is that ruling. The evidence in the case is not here, the bill of exceptions containing merely the verdict of the jury, the judgment of the court thereon, the motion for a new trial and the supporting affidavits, the proceedings had in connection with the hearing of the motion and the order of the court disposing of it, together with the necessary exceptions taken to such order.

The motion for a new trial is based solely upon alleged misconduct of the jury while in the jury room. The motion charges that one of the jurors "while said jury was deliberating on their verdict in the jury room on the forenoon of March 16, 1927, made the following statements, in substance, to and in the presence of all of the said jurors: `I have been offered One Hundred ($100.00) Dollars by them (meaning the defendant or someone in his behalf) if I will hang the jury;'" that the statement was made to influence the jury to return a verdict against Morris. The motion also alleges misconduct on the part of the juror who made the statement aforesaid in that he "was biased and prejudiced against the defendant prior to the time that he was chosen as a juror." The affidavits of a number of the jurors were presented to the court in support of the first ground of the motion. All of the affidavits, in substance, aver that the statement above detailed was made, as charged. Some of the jurors depose either that they were influenced as to their verdict by the statement or that they believe it influenced some of the other jurors in that respect. The second ground of the motion was supported by the affidavit of one Woodruff Gwynn, wherein it was stated that affiant had conversed with the juror above referred to on the day after the trial had been concluded and the jury discharged, and the juror had displayed intense prejudice against Morris and had said: "When I found out that he (meaning Lee Morris) was charged with rape on that half-witted girl I was for convicting the Son of a B, and when I went into the jury room I told the jury that I would stick until hell froze over in order to convict him." No evidence or affidavits on the part of the State were presented controverting those offered in support of the motion.

In The Pullman Company v. Finley, 20 Wyo. 456, 125 P. 380, where this court had under consideration error assigned because the trial court had overruled a motion for a new trial on the ground, among others, of alleged misconduct on the part of the jury, it being asserted that a quotient verdict had been rendered, and the affidavits of two of the jurors were presented to establish this, it was said:

"It was expressly held by this court in Bunce v. McMahon, 6 Wyo. 24, 41, 42 P. 23, that the affidavit of jurors can not be received to impeach their verdict. It was in effect so held in Gustavenson v. State, 10 Wyo. 300, 68 P. 1006. That being the settled rule in this state the affidavit of the jurors relied upon by the defendant could not be received and considered by the trial court to impeach their verdict on the ground of their misconduct. They were not competent proof of the facts therein deposed to, and the court properly refused to grant a new trial upon this ground."

Neither this decision nor the other cases from this court mentioned in the quoted excerpt appear to have been discussed or distinguished by plaintiff in error as regards the case at bar. Logically, they would seem to dispose of the first ground of his motion for a new trial adversely to his contention thereon. See also McDonald v. Pless, 238 U.S. 264, 35 Sup. Ct. Rep. 783, 59 L.Ed. 1300, and the cases of Stout v. United States, (C.C.A.) 227 Fed. 799, at 804; (certiorari denied, 241 U.S. 664, 36 Sup. Ct. Rep. 549, 60 L.Ed. 1227), and Stewart v. United States, (C.C.A.) 300 Fed. 769, at 788, illustrating the application and interpretation of the rule of the Federal Supreme Court by the lower courts of the federal system. The point is very fully reviewed also in Keith v. State, 7 Okla. Cr. 156, 123 P. 172. A recent case to the same effect is State v. Guillory, 163 La. 98, 11 So. 612.

There is yet another reason which conclusively disposes of that part of the motion for a new trial, just discussed, against plaintiff in error. There is no showing in the record now before us that the plaintiff in error was not connected in any way with the juror's alleged misconduct. This requirement is, we think, imperative. In State v. Wilson, 42 Wn. 56, 84 P. 409, 7 Ann. Cas. 418, where the facts were somewhat similar to those shown here, the court said in the course of its opinion:

"Respondent further urges that the accused should not have been heard to ask for a new trial on the ground of misconduct of the jury, as alleged, until they had at least disclaimed any connection with, or knowledge of, the alleged attempted bribery. The showing made in behalf of accused expressly states that the statement made in the jury room as to attempted bribery charged that it was in the interest of the accused. There is, however, no statement that any such attempted bribery, if there was such, was without the knowledge, consent, authority, or connivance of the accused. The criticised conduct of the jury was directly traceable to the charge that there was an attempted bribery in behalf of the accused, and before the latter should have been permitted to take advantage of such a situation upon motion for new trial, they should at least have submitted their own sworn statement that they were in no way connected with the alleged facts and circumstances which led to the conduct of the jury. It is generally held that, where prejudice has resulted to an unsuccessful party from the misconduct of the jury, he is entitled to have the verdict set aside, provided he was not concerned in such misconduct. 12 Encyc. of Pl. and Pr. 549, and cases cited. One must show innocence and want of timely knowledge of the circumstances attending the alleged misconduct to entitle him to relief. Cogswell v. State, 49 Ga. 103; State v. Nash, 45 La. Ann. 1137, 13 So. Rep. 732, 734; Clough v. State, 7 Neb. 320. If the complaining party participates in the misconduct, relief by new trial will not be granted. U.S. v. Salentine, 8 Bliss. (U.S.) 404, 27 Fed. Cas. No. 16,213."

Relative to the second ground of the motion, it will be found that in Gustavenson v. State, 10 Wyo. 300, 68 P. 1006, this court used this language:

"It is the well established rule of law that the testimony of a juror cannot be received to impeach the verdict in which he has concurred, and that, for stronger reasons, his unsworn statements repeated as hearsay in the affidavit of a third person must be rejected. (28 A. E. Ency. of Law, 273.)"

The ruling thus announced is decisive against the plaintiff in error as to this matter also. See 27 R.C.L. 899.

Finding no error in the trial court's ruling, the judgment should be and it is affirmed.

Affirmed.

BLUME, C.J., and KIMBALL, J., concur.

BLUME, Chief Justice.

I doubt the wisdom of the strict rule that affidavits or testimony of jurors in relation to what took place in the jury room can never be used to impeach their verdict, and I think the juster rule is that laid down by Mr. Justice Brewer in Perry v. Bailey, 12 Kan. 539. But the law on this point is well settled by previous decisions of this court, and it is better that any modification thereof, if deemed advisable, should be made by the legislature.

BLUME, Chief Justice.

[OCTOBER TERM, 1928]
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MORRIS v. STATE
(Sep 25, 1928)