the verdict "because of the discontent of many of the jurors at his not agreeing with them "); Ga. 1850, Bishop v. State, 9 Ga. 121, 125 (juror's affidavit that he was induced to agree by the persuasion of his fellow-jurors and by their misrepresentations as to the effect of the verdict," excluded); 1853, Clark v. Carter, 12 id. 500, 503 (juror's affidavit that he misunderstood the case in arriving at his verdict, excluded); 1855, Mercer v. State, 17 id. 146, 174 (juror's admissions that he yielded to the verdict only "because he could not control the rest of the jury," excluded); 1859, Coleman v. State, 28 id. 78, 84 (similar); 1867, Rutland v. Hathorn, 36 id. 380, 384, 386 (similar); 1873, King v. King, 49 id. 622 (similar); 1885, Coleman v. Slade, 75 id. 61, 72 (like Clark v. Carter, supra); Haw. 1859, Howland v. Jacobs, 2 Haw. 155 (juror's affidavit as to fellow-jurors' improper reasons for the verdict, excluded); 1873, R. v. Kahalewai, 3 id. 465, 469 (affidavits of jurors and third persons as to the language of jurors during deliberation, indicating bias, excluded); Ill.: 1841, Smith v. Eames, 4 Ill. 76, 81 (jurors' affidavits as to their understanding of the judge's instructions, excluded); 1878, Niccolls v. Foster, 89 id. 386 (jurors' affidavits not admitted to show "what the jury thought and did in their retirement "); Ind. 1846, Ward v. State, 8 Blackf. 102 (juror's affidavit as to his "particular view of the testimony," excluded); 1858, Elliott v. Mills, 10 Ind. 368, 371 (jurors' statements that they "unintentionally overlooked" a credit in defendant's favor, excluded); 1864, Hughes v. Listner, 23 id. 396 (juror's affidavit that he yielded his verdict only to avoid further confinement, excluded); 1872, Withers v. Fiscus, 40 id. 131 (jurors' affidavits not admissible to show that they had made a mistake in calculating the interest); Ind. T.: 1903, Langford v. U. S., - Ind. T. - 76 S. W. 111 (juror's affidavit as to his reason for consenting, excluded); Ia.: 1849, Lloyd v. McClure, 2 G. Gr. 139, 142 (jurors' affidavits not admitted to show "what items they had allowed and what rejected," in an action on an account); 1851, Abel v. Kennedy, 3 id. 47 (not admitted to show that "the reading of the deposition [after retirement] did not influence their verdict"); 1856, Cook v. Sypher, 3 Ia. 484, 486 (juror's affidavit that "the verdict was not voluntary on his part," excluded); 1859, Butt v. Tuthill, 10 id. 585 (obscurely reported); 1863, Davenport v. Cummings, 15 id. 219, 228 (jurors' affidavits that they understood by an instruction that "a preponderance of evidence was not required," excluded); 1863, Jack v. Naber, ib. 450, 452 (jurors' affidavits that they "misunderstood the testimony," excluded); 1866, Wright v. Tel. Co., 20 id. 195, 212 (principle of the prior cases approved; quoted post, § 2353); 1871, Cowles v. R. Co., 32 id. 515, 518 (juror's affidavit that he found his verdict upon certain evidence alone, excluded); 1877, Brown v. Cole, 45 id. 601 (juror's affidavit that he had assented

solely because of illness, excluded); 1878, Ward v. Thompson, 48 id. 588, 594 (jurors' affidavits as to their misunderstanding of the rule of damages, excluded); 1878, State v. McConkey, 49 id. 499, 504 (jurors' affidavits that they erroneously rejected evidence before them, excluded); 1884, Fox v. Wunderlich, 64 id. 187, 20 N. W. 7 (juror's affidavit that he assented to the verdict in order to shorten his confinement, excluded); 1885, Wilkins v. Bent, 66 id. 531, 24 N. W. 29 (jurors' affidavits that they erroneously deducted a certain amount, excluded); 1894, State v. Beste, 91 id. 565, 60 N. W. 112 (juror's affidavit that another juror argued that the defendant ought to have taken the stand, excluded); 1895, State v. Lauderbeck, 96 id. 258, 65 N. W. 158 (like sundry prior cases); 1896, State v. Whalen, 98 id. 662, 68 N. W. 554 (jurors' affidavits as to the influence upon them of an illegal reading of law books by another juror, excluded); 1896, Kassing v. Walter,

id. 65 N. W. 832 (jurors' affidavits that they erroneously reckoned interest, admitted for the purpose of argument); 1898, Christ v. Webster City, 105 id. 119, 74 N. W. 743 (jurors' affidavits as to a misunderstanding of instructions, excluded); Kan.: 1874, Perry v. Bailey, 12 Kan. 539, 544 (juror's affidavit not admissible to show ". a matter resting in the personal consciousness"; quoted post, § 2353); 1885, State v. Burwell, 34 id. 312, 8 Pac. 470 (foreman's affidavit that he "would not have signed the verdict had he known its real meaning," excluded); 1885, State v. Clark, ib. 289, 8 Pac. 528 (jurors' affidavits that documents illegally read by them influenced the verdict, excluded); 1892, State v. Plum, 49 id. 679, 31 Pac. 308 (jurors' affidavits that they consented only to avoid a hung jury, excluded); Ky.: 1808, Taylor v. Giger, Hardin 595, 598 (jurors' affidavits not admissible "to explain the train of reasoning or the grounds either of law or fact assumed by them"; here, to show an improper consideration of future damage by a continuing trespass); 1826, Doran v. Shaw, 3 T. B. Monr. 411, 415 (preceding rule applied to exclude proof of being influenced by the sheriff's directions); La. 1860, State v. Millican, 15 La. An. 557 (juror's testimony not received to show the jury's misunderstanding of the judge's charge); 1876, State v. Frugé, 28 id. 657 (juror's testimony that a juror had used fallacious arguments, excluded); 1879, State v. Wallman, 31 id. 146 (juror's testimony that he had consented only in the belief that a petition for clemency would secure a commutation of sentence, excluded); 1886, State v. Bird, 38 id. 497 (similar); 1886, State v. Bates, ib. 491 (similar); 1889, State v. Morris, 41 id. 785, 6 So. 639 (juror's affidavit and statements that he consented only because of illness and a desire to be released, held inadmissible); Me.: 1831, Bishop v. Williamson, 8 Me. 162, semble (juror's testimony as to misunderstanding the evidence, held inadmissible); 1868, Heffron v.

Gallupe, 55 Me. 563, 566 (jurors' depositions as to the influence of a paper illegally introduced before them, excluded); 1874, Greeley v. Mansur, 64 id. 211, 213 (juror's affidavit that by reason of illness he did not understand the deliberations in the jury-room, excluded); Md. 1766, Bladen v. Cockey, 1 H. & McH. 230, 235 (juror's testimony that "he gave his verdict because the witness A gave such evidence as he credited," said to be improper, because parol proof should not be used to lessen the weight of the record"); 1831, Bosley v. Ins. Co., 3 G. & J. 450, 473 (jurymen's depositions that they charged the plaintiff with interest to a certain time in estimating damages, excluded); Mass. (here the rule of Pierce v. Woodward, infra, was afterwards repudiated in Hannum v. Belchertown): 1809, Whitney v. Whitman, 5 Mass. 405 (the Court refused to examine jurors as to whether they had been influenced by a paper illegally delivered to them; "the Court must be governed by the tendency of the paper apparent from the face of it"); 1827, Hix v. Drury, 5 Pick. 296, 302 (jurors not examinable to the effect of papers accidentally delivered; "although the jury may think that they were not influenced by such paper, it is impossible for them to say what effect it may have had on their minds"); 1828, Pierce v. Woodward, 6 Pick. 206 ("Where the judge is surprised by the verdict, it is not unusual to ask the jury upon what principle it was found"; new trial granted because the principle [of damages upon which they proceeded was incorrect"); 1829, Ferrill v. Simpson, 8 Pick. 359 (juror's testimony admitted to show "that a misapprehension at the trial, in regard to a certain line, had no influence upon the verdict"; the Court's discretion being invoked); 1830, Parrott v. Thacher, 9 id. 426, 431 ("Where there are distinct grounds upon which the verdict may be given, perhaps it is not improper to ascertain which they adopted, as there may be little or no evidence upon one and sufficient upon another; and if it appears that they did not agree [unanimously] upon either of the grounds, I do not see how their verdict can stand"); 1832, Dorr v. Fenno, 12 Pick. 520, 526 (preceding case and its language, approved; "this is, however, a discretionary power, which the Court will exercise very sparingly and with great caution"; here the principle was held to permit an inquiry into the jury's principle of computing interest; but an inquiry into their mode of agreeing upon damages by striking an average was treated as involving an act of misbehavior and therefore not ascertainable through the jurors themselves); 1837, Hannum v. Belchertown, 19 Pick. 311 (jurors' depositions not admitted to show that they had obeyed the rule permitting double damages; Dorr v. Fenno approved, but its principle impliedly repudiated); 1839, Murdock v. Sumner, 22 id. 156 (jurors' affidavits not admitted to show that they made a mistake of law in believing themselves bound to accept the opinion of an expert witness ;

quoted supra); 1854, Boston & Worcester R. Co. v. Dana, 1 Gray 83, 91, 105 (jurors' affidavits not admitted to show that they had averaged damages, on the principle of Dorr v. Fenno); 1867, Bridgewater v. Plymouth, 97 Mass. 382, 390 ("the affidavits or testimony of a part of the jury cannot be received to show that they misunderstood the instructions of the judge or that they were induced by misapprehension to assent to the affirmation of the verdict"; preceding cases not noticed; moreover the principle laid down in Hannum v. Belchertown, supra, was there applied even to the entire jury's unanimous testimony); 1871, Woodward v. Leavitt, 107 id. 453, 459, 471 (jurors' affidavits held not admissible to show that a juror B., alleged to have been prejudiced, did not take part in the discussion nor vote on the side of the alleged bias; Dorr v. Fenno and Ferrill v. Simpson disapproved, in this respect; yet their doctrine is accepted so far as it allows a questioning as to the grounds of verdict by the judge before the final delivery and affirmance of the verdict); 1887, Warren v. Spencer Water Co., 143 id. 155, 165, 9 N. E. 527 (juror's subsequent declarations, or even his testimony, to the reasons for and manner of arriving at a verdict, held inadmissible); 1893, Harrington v. R. Co., 157 id. 579, 580, 32 N. E. 955 (Woodward v. Leavitt approved); Minn.: 1868, Knowlton v. McMahon, 13 Minn. 386 (jurors' affidavits not received to show that the officer in charge "sought to, and did, influence the verdict "); 1870, State v. Stokely, 16 id. 249, 255 (juror's affidavit that "he would not have concurred in the verdict had not his health compelled his release from confinement, excluded); Mo.: 1883, State v. Fox, 79 Mo. 109, 112 (some one threw a rope with a hangman's noose into the jury-room; juror's testimony as to the effect of this incident, excluded); 1893, State v. Schaefer, 116 id. 96, 22 S. W. 447 (jurors' affidavits that the evidence was misunderstood by them, excluded); 1896, State v. Burk, 132 id. 363, 34 S. W. 48 (jurors' affidavits that they consented to the verdict on the understanding that the Court would reduce the sentence, excluded); Mont.: 1895, Fitzgerald v. Clark, 17 Mont. 100, 42 Pac. 273 (juror's affidavit that he consented to the verdict because he was ill and desired to be released, excluded); Nebr. 1888, Harris v. State, 24 Nebr. 803, 40 N. W. 317 (jurors' affidavits not admissible to impeach a verdict in a matter "which essentially inheres in the verdict itself"; following the rule in Wright v. Tel. Co., Ia.); N. H.: 1827, Tyler v. Stevens, 4 N. H. 116 (jurors' affidavits that they had "misunderstood the directions by the Court," excluded); 1829, Page v. Wheeler, 5 id. 91 (following Whitney v. Whitman, Mass.); 1833, State v. Hascall, 6 id. 352, 363 (“They state generally that they were influenced by nothing except the law and evidence given at the trial; but this we cannot consider"); 1850, State v. Pike, 20 id. 344 (juror's affidavit that the absence of a certain paper, improperly

withheld, did not affect the jury's opinion of its contents or affect, admitted; State v. Hascall not cited); 1852, Folsom v. Brown, 25 id. 114, 123 (like Griffin v. Auburn, infra; jurors' affidavits here excluded); 1855, Leighton v. Sargent, 31 id. 119, 122, 137 (jurors' affidavits as to their consultations and how they determined the amount of damages, excluded); 1856, Walker v. Kennison, 34 id. 257 (jurors' affidavits that a fellow-juror misrepresented the testimony, etc., excluded); 1879, Griffin v. Auburn, 59 id. 286 (jurors' admissions, after verdict, as to having considered the question of costs, excluded); N. J.: 1792, Randall v. Grover, 1 N. J. L. 151 (juror's affidavit stating the "insufficiency of the evidence to justify the verdict," excluded); 1798, Jessup v. Cook, 6 id. 434, 439 (juror's affidavit that the jury divided a debt between the partners, offered to show that new evidence was material; Court equally divided); 1872, Hutchinson v. Consumers' Coal Co., 36 id. 24 (jurors' affidavits "to explain the reasons or motives of the jurors, or any of them, for giving or consenting to the verdict," inadmissible); N. Mex.: 1895, U. S. v. Biena, 8 N. Mex. 99, 42 Pac. 70 (juror's affidavit that the verdict was based upon the testimony of one L., subsequently convicted of perjury, apparently held admissible; the true solution here would have been to grant a new trial on the sole fact of L.'s perjury, if on a material point, without regard to its probable influence on the jury); N. C. 1878, State v. Smallwood, 78 N. C. 560 (like State v. Best, infra); 1884, State v. Royal, 90 id. 755 (juror's affidavit that the verdict was influenced by the defendant's failure to call his son as a witness, excluded); 1887, Jones v. Parker, 97 id. 33, 2 S. E. 370 (jurors' affidavits that they did not understand the judge's charge and did not concur in the verdict, excluded); 1888, Johnson v. Allen, 100 id. 131, 5 S. E. 666, 670 (affidavits based on jurors' statements as to the mode of reckoning damages, excluded); 1892, State v. Best, 111 id. 638, 15 S. E. 930 (jurors' affidavits that they assented only on the supposition that a recommendation to mercy would save from the death penalty, excluded); 1896, Purcell v. R. Co., 119 id. 728, 26 S. E. 161 (like Johnson v. Allen, supra); Oh.: 1858, Holman v. Riddle, 8 Oh. St. 384, 389 (jurors' affidavits that they misunderstood the judge's charge, excluded); R. I.: 1850, Handy v. Ins. Co., 1 R. I. 400 (jurors' affidavits that they misunderstood the judge's charge, excluded; "the proper time

id. 308, 18 S. E. 886 (juror's affidavit that he consented only on the erroneous supposition that the recommendation to mercy would secure pardon or commutation, excluded); 1897, State v. Aughtry, 49 id. 285, 26 S. E. 619, 27 S. E. 199 (jurors' statement of their misunderstanding of the charge, not received); Tenn.: 1821, Crawford v. State, 2 Yerg. 60 (two jurors' affidavits admitted, that they had consented to a verdict of guilty for the sole reason that they believed that a new trial would be granted or that the Governor would by pardon act upon the recommendation to mercy which they made a condition of assenting to the verdict); 1836, Hudson v. State, 9 id. 407 (juror's affidavit that he had founded his verdict upon a fact improperly presented to the jury by a witness re-examined in open court after the trial, excluded; in effect repudiating Crawford v. State on this point; quoted supra); 1842, Norris v. State, 3 Humph. 333, 338 (preceding case approved; jurors' affidavits that they had misunderstood the judge's charge as to believing a witness, held not admissible); 1844, Saunders v. Fuller, 4 id. 514 (same ruling on similar facts); 1847, Cochran v. State, 7 id. 544, 547 (similar to Crawford v. State, supra); 1850, Nelson v. State, 10 id. 518, 532 (jurors' affidavits that they supposed a verdict of murder in the second degree to carry a possibility of sentence less than death, received on the facts, in consequence of the trial judge's conduct); 1856, Larkins v. Tarter, 3 Sneed 681, 686 (jurors' affidavits as to the influence of improper remarks of counsel, excluded); 1869, Galvin v. State, 6 Coldw. 283, 286 (juror's affidavit that he consented to the verdict only on the erroneous supposition that the Court could fix a punishment less than death, excluded; Nelson v. State treated as exceptional); 1872, Wade v. Ordway, 1 Baxt. 229, 234 (jurors' affidavits that they misunderstood the judge's statements, excluded); 1873, Dunnaway v. State, 3 id. 206, 208 (affidavits of the entire jury as to basing their verdict upon a state of facts not in issue, excluded); 1875, Richardson v. McLemore, 5 id. 586, 589 (juror's affidavit as to the influence of part of the charge, excluded); 1880, Roller v. Bachman, 5 Lea 153, 159 (jurors' affidavits as to misunderstanding the charge and miscalculating the statutory period of limitation, excluded); 1891, Scruggs v. State, 90 Tenn. 81, 15 S. W. 1074 (juror's affidavit not received to show a misunderstanding of the judge's charge); Tex.: 1846, Campbell v. Skidmore, 1 Tex. 475 (juror's affidavit as to the influence of the judge's charge, excluded); 1856, Kilgore v. Jordan, 17 id. 342, 346 (jurors' affidavits that they misapprehended the law, excluded); 1858, Little v. Birdwell, 21 id. 597, 602, 612 (jurors' affidavits that evidence withheld from them would have influenced their verdict, excluded); 1865, Johnson v. State, 27 id. 758, 769 (jurors' affidavits that they misconstrued the judge's charge, excluded); 1888, Wills Point Bank v. Bates, 72 id. 137, 10 S. W、

is immediately after the verdict is returned, while the jury may be polled "); 1859, Tucker v. South Kingston, 5 id. 558, 560 (similar affidavits, excluded); S. C.: 1855, Smith v. Culbertson, 9 Rich. L. 106, 111 (juror's affidavit "that his assent was forced, or was given under some misconception," said to be inadmissible); 1890, State v. Senn, 32 S. C. 392, 11 S. E. 292 (jurors' affidavits as to "the manner in which the verdict was reached," held inadmissible); 1894, State v. Bennett, 40

348 (jurors' affidavits as to their understanding of the facts, excluded); 1895, McCulloch v. State, 35 Tex. Cr. 268, 33 S. W. 230 (similar to Johnson v. State; "this practice is getting entirely too common, and the lower courts should take occasion to correct it"); 1903, Blackwell v. State, . id. 73 S. W. 960 (that the jurors misunderstood the testimony, excluded); U. S.: 1806, Ladd v. Wilson, 1 Cr. C. C. 305 (jurors' affidavits that "a mistake was made by the foreman in calculating upon the principles agreed on by the jury," said to be "dangerous," and the practice of receiving them not to be sanctioned); 1890, Glaspell v. R. Co., 43 Fed, 900, 907, Thomas, J. (jurors' affidavits as to their method of reckoning the damages, offered to show that an erroneous instruction was not followed and was therefore harmless, excluded); 1890, Fuller v. Fletcher, 44 id. 34, 39 (jurors' affidavits not admissible to show that they were or were not influenced by certain motives); 1892, Mattox v. U. S., 146 U. S. 140, 142, 147, 13 Sup. 50 (rule of Perry v. Bailey, Kan., and Woodward v. Leavitt, Mass., approved; quoted post, § 2352); Utah: 1891, People v. Flynn, 7 Utah 378, 26 Pac. 1114 (jurors' affidavits not admitted to show a misunderstanding of the judge's charge); Vt.: 1865, Sheldon v. Perkins, 37 Vt. 550, 557 (juror's affidavit, after separation, that a verdict was based on a particular ground, excluded; if the ground of the verdict is material, "the proper course is to suggest it to the Court so that it may be learned from the jury in open court while they are together and under the control and direction of the judge "); Va.: 1791, Cochran v. Street, 1 Wash. 79 (jurors' affidavits that four of them were opposed to the verdict, but yielded in the belief that they were legally bound to abide by the majority's view, admitted and a new trial ordered; the ensuing cases practically overrule this); 1822, Shobe v. Bell, 1 Rand. 39 (jurors' affidavits that they yielded only in order to avoid further detention, not considered); 1849, Harnsbarger v. Kinney, 6 Gratt. 287, 300 (jurors' affidavits that they misunderstood the judge's instruction, excluded); 1854, Koiner v. Rankin, 11 id. 420, 431 (similar; "they will not readily be received to invalidate the verdict"); 1857, Bull v. Com., 14 id. 613, 626 (jurors' affidavits that one of them agreed to the verdict only on the understanding that all should unite in a request for a pardon, excluded); 1872, Read v. Com., 22 id. 924, 947 (affidavits of admissions of two of the jurors that they had decided because of the defendant's failure to explain certain evidence, excluded); 1879, Danville Bank v. Waddill, 31 id. 469, 482 (like Harnsbarger v. Kinney, supra); 1879, Steptoe v. Flood, ib. 323, 343 (two jurors' affidavits that the jury did not pass upon a document's genu

VOL. IV.

ineness, contrary to the wishes of these two, who were "persuaded against our judgments to agree to the verdict," excluded); 1899, Street v. Broaddus, 96 Va. 823, 32 S. E. 466 (jurors' affidavits that certain elements of damage were not allowed for, excluded); W. Va. 1872, Lewis v. McMullin, 5 W. Va. 582 (juror's affidavit that the verdict would have been for defendant, if certain evidence had been believed, excluded); 1883, Reynolds v. Tompkins, 23 id. 229, 234 (jurors' affidavits that they misunderstood the judge's charge, excluded); 1884, Probst v. Bravenlich, 24 id. 356, 360 (jurors' affidavits as to the items of claim entering into their consideration, excluded); 1892, State v. Harrison, 36 W. Va. 729, 15 S. E. 982 (juror's affidavit that his absence from the jury-room did not influence his verdict, not received); 1895, State v. Cobbs, 40 id. 718, 22 S. E. 310 (jurors' affidavits that they misunderstood the law as to the effect of a verdict of murder in the first degree, in respect to the Court's discretion in sentencing, excluded); Wis.: 1891, Schultz v. Catlin, 78 Wis. 611, 614, 47 N. W. 946 (juror's affidavits that they misunderstood the judge's charge, excluded).

66

3 1892, Fulton Co. v. Phillips, 91 Ga. 65, 16 S. E. 260 (jurors' affidavits admitted to sustain the verdict," by showing that they did not read and were not influenced by a verdict in a former case contained in the pleading); 1903, Davis v. Huber Mfg. Co., 119 Ia. 56, 93 N. W. 78 (affidavit as to the items of claim allowed); 1894, Ewers' Adm'r v. National I. Co., 63 Fed. 562, Paul, J. (jurors' affidavits admitted to show that a fellow-juror's prejudice had no influence on them); 1877, Zickefoose v. Kuykendall, 12 W. Va. 23, 27, 35 (that the juror could not have been biassed because he voted at first against the party for whom he was said to be biassed, allowed; this would probably not be followed, since State v. Cartwright, post, § 2353). In California the cases originally exhibiting this view have been overruled: 1888, People v. Goldenson, 76 Cal. 352, 19 Pac. 161 (juror's affidavit that a paper did not influence him, held admissible); 1890, People v. Murray, 85 id. 350, 361, 24 Pac. 666 semble (same); 1892, People v. Murray, 94 id. 212, 29 Pac. 494 (preceding cases approved; De Haven and Harrison, JJ., diss.; Garoutte, J., concurred in the judgment); 1894, People v. Stokes, 103 id. 193, 37 Pac. 207 (preceding cases repudiated ; A juror is not allowed to say, 'these matters had no influence upon my mind when casting my vote in the jury-room'; there are intimations [] in the cases of People v. Goldenson and People v. Murray tending to oppose the foregoing views, but they do not express the law "); 1895, People v. Azoff, 105 id. 632, 39 Pac. 59 (approving the preceding case).