that the intelligence and good judgment of no one of said jury became or was obscured by intoxicating drinks upon said occasion"; and further, "that he, for himself, did not find any such verdict against the defendant by reason of partaking of the liquor and wine above mentioned; and this affiant repels and repudiates the truth of any insinuation that he, or so far as his observation extended any of the members of the jury, found any such verdict against the defendant by reason of partaking of the liquor and wine above mentioned." It appears, therefore, that the amount of liquors mentioned was consumed. Whether it was equally divided, one pint of the wine to each juror, does not appear. juror drank less, he has refrained from saying so, perhaps out of delicacy for the feelings of his associates, who would be convicted thereby of having taken more.

If any

The learned attorney-general contends that this was not such misconduct as should reverse the case, because the wine was "California claret," and the cognac was used as a "flavoring for coffee." Whether he intends to insinuate that California claret is too weak to intoxicate, or to claim that to drink wine of our own make should not be treated as misconduct, does not appear; nor does he show that cognac is less effective when adulterated with coffee. The affidavits show that the wine was intoxicating, and the prosecution introduces the affidavit of the proprietor of the restaurant to show its age, quality, and probable effects. He says: "Said claret wine was a good quality of California Zinfandel wine, of four years of age"; and that he has "been engaged in the restaurant business for a period of ten years past; that he has had great experience with wines, and their effects; and that he scouts as foolish and absurd the idea that twelve full-grown men could be seriously or at all af fected by using-if they did use six bottles of claret at dinner, with a little cognac in their coffee afterwards."

It must be conceded that this is some evidence that

the whole twelve could not have been seriously or at all affected, and perhaps that none of them were so affected, assuming that the wine and cognac were equally divided. We are thus led to consider, at the outset, whether this court should stop to inquire what was the effect of the drinking of these liquors. That the jury drank the liquors is not denied. The sole question raised is, whether the mind of any member of the jury was so affected thereby as to impair his intelligence or judg ment, or render him less competent to transact with clearness and impartiality the grave duty resting upon him. It is infinitely more important that the channels of justice be kept pure and untainted than that the verdict against this defendant shall be maintained. The question is not a new one. In some cases it has been held that for a juror to take a drink of liquor during the trial was sufficient ground for granting a new trial. The case before us presents quite a different question. Here the trial had closed. in the hands of the jury. a question of the gravest to society, and to themselves. They had, up to the time of partaking of the liquors, failed to agree, and soon after agreed upon and returned a verdict that, if sustained, must send the defendant to the gallows. It seems to us that if the fact that the jury drank intoxicating liquors, without proof that it affected their minds, or the conclusion reached by them, could be held sufficient to set aside the verdict in any case, no stronger case than the one before us could be presented. We are of the opinion that where the proof of the drinking is clear and undisputed, and that it was done while the jury were actually deliberating upon their verdict in a capital case, a verdict of conviction should not be allowed to stand. This is our conviction, independent of authority, but the great weight of authority is to the same effect. (People v. Gray, 61 Cal. 164, 183; 44 Am. Rep. 549; Leighton v. Sargent,

The life of the defendant was They were deliberating upon consequence to the defendant,

31 N. H. 119; 64 Am. Dec. 320; Brant v. Fowler, 7 Cow. 562; People v. Douglass, 4 Cow. 26; 15 Am. Dec. 332; Wilson v. Abrahams, 1 Hill, 207; Jones v. State, 13 Tex. 168; 62 Am. Dec. 550; State v. Baldy, 17 Iowa, 39; Ryan v. Harrow, 27 Iowa, 494; 1 Am. Rep. 302; Davis v. State, 35 Ind. 496; State v. Bullard, 16 N. H. 139; Pelham v. Page, 6 Ark. 535; Gregg v. McDaniel, 4 Har. (Del..) 367.)

In the case of People v. Douglass, supra, the court said: "It will not do to weigh and examine the quantity which may have been taken by the juror, nor the effect produced." And in Leighton v. Sargent: "For the cause that brandy was furnished to the jury, and drank by several of them, while deliberating upon the cause, after retiring to form their verdict, we think the verdict must be set aside. The quantity drank was probably small, but we cannot consent that that fact should make a difference."

So in State v. Baldy: "The parties have a clear right to the cool, dispassionate, and unbiased judgment of each juror, applied to the determination of the issues in the cause; and the use in any degree of that which stimulates the passions, and has a tendency to lessen the soundness of judgment is itself conclusive evidence that the party who has the right to the exercise of that dispassionate judgment has been prejudiced in not having it, as perfect as it existed in the juror when accepted, applied to the determination of the cause. If this is true as a general rule, and as applicable to civil cases, a fortiori is the rule applicable in criminal cases, and especially in this case, in which the offense charged involves obedience to passions stimulated more than others by the use of spirituous liquors, and of course, in its correct determination, requiring the most careful guarding against undue influence from them." And in Davis v. State, it is said: "The bailiff, we may presume, had been sworn, in the usual form, to take charge of the jury, and keep them together without meat or drink, water

only excepted, etc. The jurors had taken upon them an oath well and truly to try the cause, etc., and had been solemnly sent out to deliberate upon questions involving the life of an unfortunate fellow-being. If misbehavior, such as that shown by the affidavits, and which is without attempted palliation or justification, should not be regarded as sufficient to set aside the verdict, it would be a stigma upon the law and a disgrace to the courts. We do not mean to say that the court should enter upon the question as to how far such conduct was or was not excusable or innocuous. It will be time to decide that question when it shall come up. In this case it does not arise. We concede that on this point the authorities are not uniform. But as to the sufficiency of such misbehavior, unexplained, to set aside the verdict, the authorities are abundant and satisfactory." Also in State v. Bullard: "There had indeed been other acts of misconduct in the case, but we think that the old law forbidding the use of refreshments at all to jurors deliberating upon a verdict, although relaxed materially from its early severity, has not yet so far yielded as to exempt them wholly from the control of the court in this particular. And we are of the opinion that the use of stimulating liquors by a jury deliberating upon a verdict in a criminal case, without first showing a case requiring such use, and procuring leave of court for that purpose, is a sufficient cause for setting aside a verdict found against the prisoner in such circumstances, whether the use was an intemperate one or otherwise."

The respondent cites the following authorities, not already referred to, as opposed to the doctrine that the mere fact that the jury drank intoxicating liquors is sufficient to set aside the verdict, without a showing that it did or might have affected the result: Pen. Code, sec. 1181, subd. 3; People v. Williams, 24 Cal. 31; People v. Brannigan, 21 Cal. 339; People v. Symonds, 22 Cal. 349; People v. Dennis, 39 Cal. 625; People v. Turner, 39 Cal.

370; People v. Anthony, 56 Cal. 397; People v. Lyle, 4 Pac. Rep. 977; 1 Bishop on Criminal Proceedings, sec. 999; State v. Caulfield, 23 La. Ann. 148; Davis v. People, 19 Ill. 74; Thompson's Case, 8 Gratt. 657; State v. Upton, 20 Mo. 398; Rowe v. State, 11 Humph. 492; Roman v. State, 41 Wis. 312; Westmoreland v. State, 45 Ga. 225; Kee v. State, 28 Ark. 155; Russell v. State, 53 Miss. 382.

We have given these authorities our careful attention, and find that, while they support the general rule that misconduct of the jury should not avoid a verdict unless it appears to have injured the complaining party, in our judgment they do not shake the well-established and salutary rule above laid down, when applied to a capital case, where the misconduct occurred while the jury were actually deliberating upon their verdict.

Section 1181 of the Penal Code, relied upon by the respondent, provides (subdivision 3) that a new trial may be granted to the defendant "when the jury has separated without leave of the court, after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented." It is urged upon us that the section referred to sets forth and limits the kind of misconduct for which a new trial may be granted, and that to authorize the setting aside of the verdict, it must affirmatively appear that a fair and due consideration of the case is prevented. Such a construction of the statute would compel a defendant, in every case of this kind, to show affirmatively that he had been actually injured by the misconduct complained of. None of the cases cited go to that extent, and if they did, we should not be inclined to follow them. That the jury in this case was guilty of misconduct, we presume none will deny. The wrongful act committed was one the direct tendency and natural consequence of which was to affect their capacity to perform their duties. Such being the nature of the misconduct complained of, and the act being committed at