The presence of a barber admitted to the jury room for the convenience of the jurors is not sufficient cause for setting aside the verdict; Com. v. Lombardi, 221 Pa. 31, 70 Atl. 122.
Where the jury is discharged by the court for having separated after being sworn, the trial is not a bar to a subsequent prosecu tion ; State v. Costello, 11 La. Ann. 283 ; State v. Hall, 9 N. J. L. 256 ; People v. Bea gle, 60 Barb. (N. Y.) 527; Hilbert v. Coro., 51 S. W. 817, 21 Ky. L. Rep. 537 ; Com. v. Roby, 12 Pick. (Mass.) 496; but where the jury, finding one of their number disqualified, dispersed without the knowledge of the court, the defendant was held to have been once in jeopardy and could not again be tried; Maden v. Emmons, 83 Ind. 331.
Affidavits of jurors will not be received to impeach a verdict ; Thomp. & Merr. Juries 539, citing numerous cases; Croasdale v. Tantum, 6 Houst. (Del.) 218; People v. Azoff, 105 Cal. 632, 39 Pac. 59 ; Allison v., People, 45 Ill. 37. Nor will statements of third parties who derived their information from a member of the jury ; Thomp. & Merr. Juries 547; Peterson v. Skjelvei, 43 Neb. 663, 62 N. W. 43 ; State v. Schaefer, 116 Mo. 96, 22 S. W. 447.
The court may question the jury as to the grounds upon which they based their ver dict, if there was more than one ground; Spoor v. Spooner, 12 Mete. (Mass.) 281. A juryman may be heard to show misconduct on the part of third parties; Ritchie v. Hol brooke, 7 S. & R. (Pa.) 458; and jurymen should report to the court any attempt to in fluence them ; Allison v. People, 45 Ill. 37. But affidavits appear to be admissible to im peach the verdict, in Tennessee ; Joyce v. State, 7 Baxt. (Tenn.) 273 ; and to a cer tain extent in Iowa ; Wright v. Telegraph Co., 20 Ia. 195 ; and Kansas; Johnson v. Husband, 22 Kan. 277; and to show that a verdict was decided by lot ; .Fain v. Goodwin, 35 Ark. 109.
Testimony or affidavits of jurors as to what occurred in the jury room are generally excluded ; Woodward v. LeaVitt, 107 Mass. 453, 9 Am. Rep. 49, and this rule has been followed to the extent of excluding even evi dence of improper conduct-as that a juror had made material statements from his own knowledge ; St. Louis S. W. R. Co. v. Rick etts, 96 Tex. 68, 70 S. W. 315 ; Price's Ex'r v. Warren, 1 Hen. & M. (Va.) 385 ; Clum v. Smith, 5 Hill (N. Y.) 560; Boetge v. Landa, 22 Tex. 105 ; contra, State v. Burton, 65 Kan. 704, 70 Pac. 640.
The admission of affidavits of jurymen to the fact that they have not been influenced by newspaper articles is immaterial, if a motion for a new trial is rightly overruled on other grounds; Spreckels v. Brown, 212 U. S. 208, 29 Sup. Ct. 256, 53 L. Ed. 476.
Jurors are competent witnesses, in a pro ceeding in equity to remedy a mistake made by the foreman in announcing the verdict, to prove that the verdict read out in court was not their verdict, but the result of an over sight ; Hamburg-Bremen Fire Ins. Co. v. Mfg. Co., 76 Fed. 479, 22 C. C. A. 283.
Proceedings apart from the jury. There is no settled rule that arguments as to the ad missibility of evidence should be conducted apart from the jury in criminal cases ; Mose v. State, 36 Ala. 211; contra, White v. State, 10 Tex. App. 381; it is in the discretion of the court, and no exception lies in either case ; State v. Wood, 53 N. H. 484; State v. Moore, 104 N. C. 743, 10 S. E. 183; Corn. v. Rogers, 181 Mass. 184, 63 N. E. 421; Lewis v./State, 85 Miss. 35, 37 South. 497; Poole v, State, 45 Tex. Cr. R. 348, 76 S. W. 565 ; Drig gers v. State, 38 Fla. 7, 20 South. 758. In deciding the question. the court may assign its reasons in the hearing of the jury ; Pat terson v. State, 86 Ga. 70, 12 S. E. 174. It was held that in a murder trial the jury may be required to retire during the argument of such questions ; Kraner v. State, 61 Miss. 158; but in another such case it was held error for the court to exclude the jury dur ing argument on the law by defendant's counsel; Patterson v. State (Tex.) 60 S. W. 557.
Where confessions are offered, the prelimi nary inquiry may be conducted in the pres ence of the jury or not, in the discretion of the judge ; Lefevre v. State, 50 Ohio St. 584, 35 N. E. 52 ; State v. Kelly, 28 Or. 225, 42 Pac. 217, 52 Am. St. Rep. 777; such inquiry was held to be properly conducted' in the presence of the jury in Holsenbake v. State, 45 Ga. 43; Shepherd v. State, 31 Neb. 389, 47 N. W..11.18 ; contra, Hall v. State, 65 Ga. 36; Carter v. State, 37 Tex. 362 ; and where after proper preliminary examination, they have been admitted, there is no room for question touching the propriety of conduct ing the examination in the presence of the but it has been held that it must not be in the presence of the jury if the ac cused so request; Ellis v. State, 65 Miss. 44, 3 South. 188, 7 Am. St. Rep. 634.