upon this jury, but he could not know whether such statements were true or were false except by means of the testimony of the other jurors, when questioned as to their consultations. Hence this judgment purporting to convict the relator of criminal contempt must finally rest upon such testimony improperly received. It violated the ancient and recognized rule that when "the jury retire to deliberate upon their verdict to be given, their conversations and discussions, their deliberations,-cannot be inquired into." (Hewett v. Chapman, 49 Mich. 4.) In Wharton's words: "The communications between jurors, referring to the case under consideration, as an official body, are privileged, and they cannot be compelled to testify to the same; nor will testimony be received to show their mistake, or to impeach their verdict." (1 Whart. Crim. Ev. [10th ed.] 1054.)

The wisdom that forbids to pry into the consultations of jurors especially applies in a criminal case. Suppose after conviction it were made to appear that against the statute and charge of the court one juror had forcibly commented to his fellows upon the failure of the accused to be sworn, could the court punish such remark, or even permit it to be the subject of inquiry?

Furthermore, this is a matter of complaint which, in Coke's words, "was never seen before." Punishment for contempt is here applied to acts not external to the deliberations of the jury, nor to overt acts, like drunkenness (Perry v. Bailey, 12 Kan. 539), but to the intimate and free conversations between jurors in which expressions of personal knowledge passed before arriving at their verdict. There is no outside proof that before the trial the relator had declared a bias or partisanship, as in Hyman v. Eames (41 Fed. Rep. 676), which cannot be deemed an authority here.

The jurisprudence of New York has jealously guarded the privacy of a jury's consultations. In civil cases New York abolished "attaints upon untrue verdicts" (Act of March 30, 1801; Laws of 1801, chap. 90, § 28; 1 K. & R. 358, § 28)

about twenty-five years before that strange process of investigating juries' actions was finally repealed in England. (6 Geo. IV, chap. 50, § 60.)

Our Revised Statutes set strict bounds upon courts' investigation of the jury room by this provision: "Attaints upon untrue verdicts are abolished; and for any verdict rendered by him, no juror shall be questioned, or be subject to any action or proceeding, civil or criminal, except to indictment for corrupt conduct in rendering such verdict, in the cases prescribed by law." (2 R. S. 421, § 69.)

The revisers' note to this called "the residue new, but declaratory of a principle that has been sometimes disregarded." (Revisers' Reports, vol. 5, p. 65.)

Jurors are protected from inquisition and punishment save by process under indictment with jury trial by a like provision in our Civil Rights Law (Consol. Laws, chap. 6; Laws of 1909, chap. 14), section 14, in that it wholly drops the qualifying words "in rendering such verdict." Hence the Legislature has unmistakably left misconduct of jurors to be dealt with under the established methods of the criminal law.

My real difference with my brethren is whether these provisions can be disregarded if only the verdict be not technically affected. After a jury has been discharged, can the prosecution call up the jurors and demand to have them sworn again to testify how and by what arguments they finally voted not to convict? What would be left of the moral value of an acquittal, if the jurors, or one of them, could be fined for participation in this result? The distinction as to such inquisition (hitherto happily unknown in the United States) is plain. It is between what the jurors may say in deliberating upon their successive votes-what Wigmore calls "their subjective freedom of expression" and overt acts, like getting drunk, or otherwise incapacitating themselves from discharge of their duty, or the effect on them of extraneous influences like evidential papers from a party or newspapers covertly brought into the jury room.

The decision of McDonald v. Pless (238 U. S. 264), relied upon in the majority opinion, was a civil cause, in which, despite the attempt to have a juror afterwards sworn upon defendant's motion for a new trial, a quotient verdict was sustained.

Professor Wigmore says (§ 2345): "The dogma that a juror may not impeach his verdict is, then, in itself neither correct in law nor reasonable in principle." He refers this doctrine of exclusion to the general principle of privileged communications between jurors during retirement. He lays down the fundamental principle: "The communications originate in a confidence of secrecy; this confidence is essential to the due attainment of the jury's constitutional purpose; the relation of juror is clearly entitled to the highest consideration and the most careful protection; and the injury from disclosure would certainly overbalance the benefits thereby gained." (§ 2346.) He also states that the communication of a juror's expressions of personal knowledge are within the privilege for confidential communications which "ought to exclude them." (§ 2354[2].)

However it may be in other jurisdictions, in the State of New York it is the privilege of the jurors that is inviolable, not the result in a mere verdict, the value of which depends wholly on maintaining such privilege. Suppose, after a jury have failed to agree and have been discharged, a juror should be sued for slander in having told his fellow jurors that the defendant in the case was a thief. Would such evidence be admissible, because it would not happen to "impeach a verdict?"

The power to punish for contempt in this state is limited. The Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), section 753, subdivision 6 (re-enacted from Code Civ. Proc. § 14, subd. 6, and R. S. pt. 3, chap. 8, tit. 13, § 1, subd. 6; 2 R. S. 534, 535, § 1, subd. 6), provides: "A person duly notified to attend as a juror, at a term of the court, for improperly conversing with a party to an action or special proceeding, to be tried at that term, or with any other person, in

relation to the merits of that action or special proceeding; or for receiving a communication from any person, in relation to the merits of such an action or special proceeding, without immediately disclosing the same to the court."

The revisers spoke of defining a power to punish contempts, “which, while it is absolutely necessary in many cases, is yet perhaps, more liable to abuse, and in England, has been abused, more than any other possessed by the courts." Subdivision 6 was reported as enacted, except that the word "improperly" was inserted by the Legislature, who further struck out the revisers' additions, "for eating or drinking, after being sworn as jurors, or for departing from the court, or for separating from the other jurors or the officers having them in charge, without the permission of the court." (3 R. S. [2d ed.], 772, 773, Appendix.) To seek to punish for things privately said by jurors is not found in either section 750 or section 753 of the Judiciary Law. Where, after an acquittal, it was sought to call in question the act of a grand jury in finding the original indictment, Coke said of such attack on jurors: "It will be a cause of infinite vexation and occasion of perjury, and smothering of great offenses, if such averments and supposals shall be admitted after ordinary and judicial proceeding; and it will be a means, ad deterrendos et detrahendos juratores a servitio Regis." (Floyd & Barker Case, 12 Coke, 23, 24.) Indeed the Federal court has fined a grand juror for such disclosure. (Matter of Atwell, 140 Fed. Rep. 368.) This was reversed because the obligation of secrecy was held not to continue after the grand jury had been finally discharged and the accused apprehended. (Atwell v. United States, 162 Fed. Rep. 97.)

The British Court of Chancery is declared to be “jealous of the personal freedom of the subjects of the Crown." (Hope v. Carnegie, L. R. 7 Eq. 254, 260.) Not less so should be the attitude of a New York court. "The power which courts possess of punishing for contempts, and for refusal to give evidence, is, in its nature, an exception to the provisions of

the Constitution. It is a power to deprive a man of his liberty, without a jury and without a regular trial. It cannot therefore be extended, in the least degree, beyond the limits which have been imposed by statute. No implication, and no fancied necessity, can be permitted to add to the literal meaning of the words by which the Legislature have restricted this power." (Rutherford v. Holmes, 5 Hun, 317, 319; affd. 66 N. Y. 368; approved in Johnson v. Austin, 76 App. Div. 312, 313.) "Any shred or remnant of undefined common-law power was deemed dangerous." (People ex rel. Munsell v. Court of Oyer & Terminer, 101 N. Y. 245, 250.)

Even in England, where there is no limiting statute, as in New York, for contempt, Sir George Jessel solemnly declared: "It seems to me that this jurisdiction of committing for contempt being practically arbitrary and unlimited should be most jealously and carefully watched, and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of judges to see whether there is no other mode, which is not open to the objection of arbitrariness and which can be brought to bear up on the subject." (Matter of Clements, 46 L. J. Ch. Div. [N. S.] 375, 383.)

The county prosecutor and the court should be ever zealous to preserve the purity, fairness and impartiality of juries, and to use all means provided by the Legislature to prevent interference with the due administration of justice. But the present order, with the method of inquiry followed, if allowed to stand as a precedent, in my judgment would work greater harm than could come from this acquittal. Such order removes landmarks which our ancestors set up. It strips from acts of a juror in an official body the protection to be regularly subjected to indictment and trial by the country, a safeguard guaranteed to the worst criminal. It does violence to a statute carefully framed to restrict criminal contempts to conduct willfully disobedient or disorderly.

Hence I vote to reverse, and to dismiss the proceedings.