On the 22nd day of June, 1933, the defendant was convicted of the crime of engaging in the liquor traffic. He promptly appealed from the judgment and also made a motion for a new trial, which motion came on for hearing on the 6th day of July, 1933, at which time the arguments and remarks of the court were taken down in shorthand by the court stenographer and which included an oral statement of the court denying the motion for a new trial, which stenographic notes were filed with the clerk of court, but were not transcribed until the 24th day of October, 1933. Thereafter, the defendant applied to the court for an order to show cause why the said notes should not be transcribed and a proper order filed in the office of the clerk of court, so that the time for the running of the statute on appeal might be fixed and why the defendant should not have sixty days from, the time of the .filing of said order in which to. take an appeal therefrom. This motion was also denied and the first question *521 in the case is, was the lengthy oral statement made by the court in the stenographic record in the proceeding’s on motion for a new trial such an order that an appeal must be taken therefrom within sixty days after the same was orally made ? The minutes of the court during the trial as entered by the clerk are in the record and there is no mention of any such order in the minutes and there was no record of such order except in the shorthand notes of the court stenographer on file.
Section 7939, Compiled Laws 1913, reads as follows: “Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order.”
This section is identical with § 7194 of the Idaho Code and in the case of Spivey v. District Ct.
In the case of Goade v. Gossett,
California has the same statute and in 18 Cal. Jur. 662, the rule is stated as follows: “Orders of a court or judge must be made or entered in writing. Care should be exercised to see that the orders procured are entered in such terms as to express with precision the objects to be attained.”
State ex rel. Tibbals v. District Ct.
*522
20 P. C. L. 512 states the rule as follows: “There is a clear distinction between the making of an order and its entry. The order is made when the court announces it. It is entered when it is placed of record by the clerk. The general rule would seem to be that for most purposes some entry or record of an order is necessary to its completion.” The foregoing is quoted with approval by the Michigan court in Freeman v. Wayne Probate Judge,
It is the contention of respondent that the statutory definition applies only to orders made in civil actions. It is true that the'definition of an order is found in the Code of Civil Procedure, but it is a general definition and states specifically
that cm order is “Every direction of a court or judge made or entered in wñiing,
and not included in a judgment, is denominated an order'.” Doubtless an oral order may be made in some cases as in the case of United States v. Terry (D. C.)
It is clear that such an important order as that of granting or refusing a new trial should be made a part of the written record and an oral order denying or granting a new trial is not complete until it is reduced to writing, signed by the judge and filed with the clerk of court, or if the order is made in open court, § 10,907, Compiled Laws 1913, makes it the duty of the clerk to enter carefully and correctly in the minutes of such court every ruling or decision of the court upon any matter, by § 10,905 and subd. 1 and 2 of § 10,906 declared to be deemed excepted to and a certified copy of any or all such" entries shall be and become a part of the record of said action. If the order is made in open court it is not complete and no part of the record until it is entered in the minutes of the court as provided by § 10,907. Unless it is reduced to writing, signed by the judge and filed with the clerk or entered by the clerk in the minutes of the court as provided by law, there is nothing to appeal from.
The real question in this case, however, can be determined on the appeal from the judgment. During the trial the state offered in evidence a cardboard paper box containing intoxicating liquors, labeled *523 “This and contents was found by ns on tbe 26th day of May, 1933, at tbe house in tbe city of Grand Forks, North Dakota and occupied by
Dated May 26, 1933. (Signed) J. M. Lund”
In tbe lower corner of said exhibit is tbe notation “6-20-33,
(Signed) C. H. Keen, Clk.”
Tbe said box contained 24 compartments in which were six full balf pints and one full pint of alcohol and -two balf pints partly full, five empty balf pint bottles. On all of said bottles were marked “State’s Exhibit 7” and were labeled as follows: “This bottle and
contents were found by me on 26th day of May, 1933, at 306 S. 3rd St. in the city of Grand Forks, North Dakota, and occupied by Bosina Lindeman.
Dated May 26, 1933,' 9 :45 P. M. (Signed) J. M. Lund
Joe Blevin
BFB”
That the initials “BFB” are in the bandwriting of B. F. Benson, a patrolman of the City of Grand Forks, and husband of Mrs. B. F. Benson, who sat in this case as a member of the jury. This box with contents bad been used as an exhibit in a former trial of another case. It was offered by tbe state in the instant case and an objection to receiving it in evidence was sustained. For some reason it was not separated from the other exhibits and when the jury retired it was sent with the other exhibits to the jury room. There are affidavits of tbe clerk and of the bailiff and also of-the jurors and it is clear from tbe record that very damaging testimony, that had been excluded by the court, went into the jury room with other exhibits. It is claimed that it was error, under subd. 2 of section 10917 namely: “When the jury has received out of court any evidence other than that resulting from a view of the premises, or any communication, document or paper referring to the case.”
The box with its contents, all marked as exhibits, was offered in evidence and an objection to the receipt of such box and exhibits in evidence was sustained by the court. This evidence being ruled out was just as much out of court as though it bad never been offered and had never been in the possession of the prosecution. It is only evidence admitted by the trial judge that is evidence in the case in court and *524 evidence ruled out by tbe trial judge is out of tbe case and out of tbe court. The clerk of the court makes an' affidavit that the said exhibits were submitted to the jurors with the other exhibits in the case, retained and returned by the jury into court with the other exhibits in the case when the verdict was rendered. The bailiff in charge of the jury, in an affidavit, states that for some unknown reason to him, or inadvertently, the cardboard paper box, with contents and labels, was taken to the jury room with the exhibits in the case, left with the jury through the entire deliberation and returned with the exhibits into court when the verdict was rendered. Earl Minnie, a juror, states in an affidavit that the box, with contents'and labels was received by the jury with the exhibits, remained with them during the entire deliberation and was returned into court with the exhibits; that they were in full view of the jury and were examined by them and some of the jury smelled the liquor and some of them drank some of it. Other jurors state in affidavits that said exhibits were received and remained with the jurors until a verdict was reached and returned with the exhibits in the case. Mrs. B. E. Benson, a juror, stated, in an affidavit, that she is the wife of B. E. Benson, the officer whose initials appear on the exhibits. Earl Minnie made a second affidavit, stating that the foreman took one of the full bottles out of said cardboard paper box, held it up to the juror, Mrs. Benson, and asked her if she denied the signature of her husband. This was in the presence and in view of all of the jurors in the case. A number of the jurors signed a general affidavit stating, in substance, • that the verdict was based entirely on the consideration of the testimony given in court and the other exhibits or evidence taken in the jury room were in no way considered or discussed. A number also signed a general affidavit stating that their attention was called to a paper carton, which was stated did not belong in the jury room and the carton and its contents was placed in the cloak room and remained there during the jury’s deliberation. That said box, or any of its contents, was not handled by any of the jurors and no conversation was had regarding the box; that none of the jurors drank any of the exhibits. Mrs. B. E. Benson and Earl -Minnie did not sign any of the general affidavits and the statement that the initials of the officer on the exhibit weré those of the husband of the juror, Mrs. B. E. Benson and the statement that *525 the foreman held up a bottle and asked her if she denied her husband’s signature are uncontradicted.
It is, of course, well settled that jurors cannot impeach their verdict. State v. Forrester,
Respondent contends that while the jurors cannot impeach their verdict by affidavit that they can sustain it by sworn statements. If it cannot be impeached there is no necessity for sustaining’ it by the testimony of the jurors and the better reasoning is against the use of affidavits by the jurors to either impeach or sustain the verdict.
In the case of State v. Burke,
In the case of People v. Knapp,
In the instant case the affidavit of the jurors cannot be considered either to impeach or sustain the verdict, but there is the affidavit of the clerk of court and the affidavit of the bailiff who had the jury in charge, that the jurors had the exhibits in their possession during their *526 .deliberation and that the returned them with the other exhibits in the case when the verdict was returned. It is conceded that this evidence which was excluded by the trial judge was in the possession of the jurors all of the time after they retired until they reached their verdict.
The sole question is, was the receipt of the evidence by the jury prejudicial error. In the ease of People v. Cummings,
Quite similar to the suppositious case advanced by the California court is the case of State v. Burke,
In the case of Dartnell v. Bidwell,
This is very much like the instant case. The photographs were offered and refused and apparently without the fault of any one, as in the instant case, they were in the possession of the jury and the court was of the opinion that they were calculated to influence the jury. State v. Lantz,
In the'case of Ogden v. United States (C. C. A. 3d)
*529
It is well settled ■ that the reception of any evidence by tbe jury in a criminal case outside of that produced at tbe trial will vitiate tbe verdict. Snow v. State, 91 Tex. Crim. Rep. 1,
In tbe instant case tbe defendant is charged with tbe crime of “engaging in the liquor traffic” on tbe 3rd day of June, 1933. Tbe original complaint alleges tbat be bad in bis possession a small quantity of alcohol on said day and tbe sheriff’s inventory shows that on said day be seized about one and a half ounces of alcohol and this small quantity of alcohol was sent to tbe jury with tbe large quantity of alcohol contained in tbe cardboard paper box and in the circumstances it would unconsciously, if not consciously, affect tbe jury in this case where tbe defendant is charged with “engaging in tbe liquor traffic.” Tbe finding of an ounce and a half of alcohol in tbe possession of tbe defendant is not much evidence tbat be was “engaging in tbe liquor traffic,” but when to this is added tbe alcohol in tbe cardboard paper box, what may have been uncertain and doubtful would appear to be certain and conclusive. Tbe bottles were marked as exhibits and tbe labels showed their contents. Tbe name of tbe owner of tbe bouse where tbe box was found was tbe same as tbat of tbe defendant. It was necessary for tbe jury to examine tbe box and its contents to determine its character and whether it was evidence for their consideration. It supplies the occasion for injurious suspicions and it is tbe *530 policy of tbe law to avoid any occasion for outside influence or any occasion wherein it might be said that outside evidence influenced the verdict.
The judgment is reversed and a new trial ordered.