reason that Vaise's case was a direct attack on the verdict, the jurors were refused as affiants because they showed that all of the jurors, including the affiants, were guilty of a high misdemeanor, while in the case at bar there was not and there could not be any attack upon the verdict, and the witnesses testified to the isolated piece of misconduct of one of their number independent from any action on their part. I find in none of the cases any decision or dictum or expression that justifies the exclusion of these witnesses, provided there is no attack upon the verdict. And even, as I have shown, in an attack upon the verdict in Smith v. Cheetham (supra), the court denied the application of Vaise's case. I am not contending against decisions, but I am showing that there is none in point or in reasoning that makes against me in the case at bar.

But it is also said by my brethren that the principle of the secrecy of the jury room must prevail. The public policy of this principle of secrecy is in the furtherance and assurance of free, fearless and untrammeled deliverance upon the evidence, and for that reason the proceedings of the jurors preliminary to the verdict the talk, discussions, informal votes and the like are declared inviolable for all time. Such doings are within the discharge of the duty cast upon the jury to decide the case upon the evidence. Such doings preliminary to the verdict are merged in it, and are inherent in it as the vere dictum. But conduct of a juror during the deliberations aimed to secure a particular verdict, by which in violation of his oath he should "avail himself of the opportunity of adding to or detracting from the evidence by means of his own peculiar knowledge of any of the circumstances attending the transaction submitted to their consideration," which "would * * * violate his duties" (Daniels, J., in People v. Zeiger, 6 Park. Crim. Rep. 355, 357), should not be contemplated as if preliminary to the verdict and inherent in it, but-to quote the language of Cole, J.--such doing is a matter that does not "essentially

inhere in the verdict itself." (Wright v. Illinois & Mississippi Telegraph Co., 20 Iowa, 195, 210.) This expression is approved by Wigmore on Evidence, section 2353. I see no justifiable reason, then, for the inclusion of such misconducta violation of oath and of function-as within the protection afforded to proper conduct, namely, due deliberations upon the evidence. I cannot see that the jurors would be deterred from full and free performance of their duties if such misconduct might be brought to light by their testimony. I cannot see that the jurors' discharge of their lawful duties is safeguarded by immunity to one of their number who willfully violates those duties. The honest juror need have no fear of exposure even of his own part, if the principle is confined to its reason. The corrupt juror need have no fear of exposure, if the principle is extended beyond its reason.

How could exposure of the wrongdoer interfere with the principle that the legitimate discharge of the lawful doings of the jury preliminary to the verdict should not be disclosed? The jurors are not to be regarded as informers, but as witnesses summoned to testify. If they are not called to impeach their verdict, why should they be excluded as witnesses, to the end that the wrongdoer may escape unless it chance that some outsider may learn of his misconduct through a window (see Lord Mansfield, in Vaise's case, supra), or an eavesdropper happen to sit squat at the keyhole. I perceive no reason why the misconduct should be limited to acts, in contradistinction to words. Words are things, and wrongs may be worked by them. Should drunkenness of a juror be liable to exposure, and words whereby, e. g., a juror should offer $1,000 apiece to his fellows for a verdict for his friend, or should threaten that violence would follow any juror who voted against such friend, be protected because such words are uttered while the jury are deliberating? There is no tangible proof of either misconduct other than the testimony of the jurors.

I find most persuasive authority for my contention in the

Supreme Court of the United States in cases which even presented direct attacks upon the verdict. (Mattox v. United States, 146 U. S. 140; McDonald v. Pless, 238 id. 264, 268, 269.) In McDonald v. Pless (supra) the unanimous court, per Lamar, J., said: "The rule on the subject has varied. Prior to 1785 a juror's testimony in such cases was sometimes received though always with great caution. In that year Lord Mansfield, in Vaise v. Delaval (1 T. R. 11), refused to receive the affidavit of jurors to prove that their verdict had been made by lot. That ruling soon came to be almost universally followed in England and in this country. Subsequently, by statute in some states, and by decisions in a few others, the juror's affidavit as to an overt act of misconduct, which was capable of being controverted by other jurors, was made admissible. And, of course, the argument in favor of receiving such evidence is not only very strong but unanswerable-when looked at solely from the standpoint of the private party who has been wronged by such misconduct. The argument, however, has not been sufficiently convincing to induce Legislatures generally to repeal or to modify the rule. For, while it may often exclude the only possible evidence of misconduct, a change in the rule 'would open the door to the most pernicious arts and tampering with jurors.' 'The practice would be replete with dangerous consequences.' 'It would lead to the grossest fraud and abuse' and 'no verdict would be safe.' (Cluggage v. Swan, 4 Binn. 155; Straker v. Graham, 4 M. & W. 721.) There are only three instances in which the subject has been before this court. In United States v. Reid (12 How. [U. S.] 361, 366), the question, though raised, was not decided because not necessary for the determination of the case. In Mattox v. United States (146 U. S. 140, 148), such evidence was received to show that newspaper comments on a pending capital case had been read by the jurors. Both of those decisions recognize that it would not be safe to lay down any inflexible rule because there might be instances in which such

testimony of the juror could not be excluded without 'violating the plainest principles of justice.' This might occur in the gravest and most important cases; and without attempting to define the exceptions, or to determine how far such evidence might be received by the judge on his own motion, it is safe to say that there is nothing in the nature of the present case warranting a departure from what is unquestionably the general rule, that the losing party cannot, in order to secure a new trial, use the testimony of jurors to impeach their verdict. The principle was recognized and applied in Hyde v. United States (225 U. S. 347), which, notwithstanding an alleged difference in the facts, is applicable here. The suggestion that, if this be the true rule, then jurors could not be witnesses in criminal cases, or in contempt proceedings brought to punish the wrongdoers is without foundation. For the principle is limited to those instances in which a private party seeks to use a juror as a witness to impeach the verdict." The italics are mine.

Of course, if there were contrary or conflicting decisions in our own state we would follow them in the absence of direct decision of the United States Supreme Court upon a question within its jurisdiction. But in the absence thereof, these cases in the United States Supreme Court are of the highest persuasive authority, and even a gratis dictum therein is entitled to the greatest respect. Moreover, when the question presented is one of general policy, a fortiori should we respect the declarations of the highest court of our land. (See remarks of Duer, J., in Stoddard v. Long Island R. R. Co., 7 N. Y. Super. Ct. 180, 188; Bell v. Perkins, 7 Penn. [Peck], 261, 263.)

It seems to me that the learned and scholarly dissent characteristic of my brother Putnam is beside the mark. I could concur with him had the verdict been attacked, despite the authorities contra, for although the false answers were not made in the jury room the jurors were necessary witnesses to

justify the finding of falsity. I would concur with him if the misconduct in the jury room should be resolved as of the deliberations of the jury upon the case as presented to them by the evidence, which alone it was their sworn duty to consider. But I think that neither reason nor policy should extend the protection of sanctity so it would shield even the briber or the bully, provided he attempted his work during the period of deliberation.

The dissent of my brother Kelly is put upon the ground that the proceedings against the relator were in violation of section 14 of the Civil Rights Law, which is as follows: "A juror shall not be questioned, and is not subject to an action, or other liability, civil or criminal, for a verdict rendered by him, in an action in a court of record, or not of record, or in a special proceeding before an officer, except by indictment, for corrupt conduct, in a case prescribed by law." I have heretofore attempted to show that this juror was not questioned for a verdict, and that he was not subjected to these proceedings for a verdict.

I think there should be no question as to the competency of these jurors as witnesses, when the feature of attack upon the verdict is not in the case. In Canal Bank of Albany v. Mayor, etc., of Albany (9 Wend. 256), the court, per Nelson, J., say: "In the case of Smith v. Cheetham (3 Caines, 57), no doubt was entertained by the court as to the competency of the confessions or admissions of the jury, if their own affidavits were admissible, and the only difficulty was the rule which rejected the evidence of the jurors themselves to impeach their verdict." (See, too, Harris v. State, 24 Neb. 803, 809.) The statements of the relator were admissible. (Dodge v. State, 24 N. J. Law, 455, 461; State v. Williams, 30 Mo. 364. See, too, Richards v. State, 36 Neb. 17, 28; Ellis v. State, 33 Tex. Cr. Rep. 508.)

The case at bar is a practical illustration of the rule which I maintain. The verdict of acquittal had been rendered and