Jenks, P. J.:
This is certiorari of proceedings that adjudged the relator guilty of a criminal contempt. The relator also appeals. For [427]*427reasons hereinafter stated, I advise dismissal of the appeal. The contemnor was a petit juror on the trial in the County Court of Nassau county of an indictment against the Schwabs for keeping a “ café ” as a disorderly house and a public nuisance. After the jury had acquitted the defendants, the contempt proceedings were begun by order to show cause based upon affidavits. The relator appeared upon the return day personally and by counsel. The judge who had sat upon that trial conducted this hearing. Witnesses were examined and cross-examined. The relator offered no evidence, but rested his case upon various motions.
The final order rests upon the following facts: The relator, after drawn as a petit juror, was informed by the assistant district attorney that the prosecution sought an indifferent jury of whom none was acquainted with the defendants or their place then charged as disorderly, and none had knowledge of the defendants or of that place. Thereupon, in response to specific questions put to him, the relator answered that he did not know the defendants or either of them, and that he knew nothing of their place. Thereafter the relator was sworn, sat throughout the trial and took part in the verdict. After the case had been submitted to the jury and they had been sent to their room, the relator there stated to his fellows or some of them, that he knew the defendants and their place, that he had visited it several times and that in his opinion it was all right and a correct place. The court found that the said answers made to the assistant district attorney were false, that the conduct of the relator was deliberate in the court room and in the jury room, and that his said behavior constituted a criminal contempt of court.
My discussion presents three questions: First, was there evidence? Second, was there proof? Third, was there a criminal contempt?
First. One of my brethren contends that the witnesses called were incompetent because they had been jurors in the case in which the relator had demeaned himself as a contemnor. My answer is that there is no rule or principle of evidence, case made or statutory, that sustains the dissentient; but that both persuasive authority and reason made these persons competent witnesses in this proceeding. Examination of all [428]*428the cases cited by my brother, and, I venture to assert, all others in this State and, indeed, outside of it where the rule of exclusion has been applied, will show procedure of attack upon the verdict, and that the witnesses or affiants were excluded, not because they were or had been jurors, but because they could not be heard to impeach their verdict. The text writers are cited where they are in consideration of the like condition. If so, then the cases cited are neither precedents nor authorities in the case at bar, for the reason that the verdict had been rendered before these proceedings were begun. Such verdict in this State was a finality, for it was one of acquittal in a criminal case, and hence these proceedings were not, and could not be, directed against the verdict. The verdict was not involved — not even a feature in the proceedings. The conduct of the relator bore no relation to the verdict rendered; it could have occurred in every detail whether the verdict was one of acquittal or of conviction, or if the jury had disagreed. The relator was not brought to book because of his verdict, or because of his part in the rendition of it.
Of the cases cited in the dissenting opinion, Smith v. Cheetham (3 Caines, 57) is authority for admissibility even in proceedings against the verdict; and Clum v. Smith (5 Hill, 560), Williams v. Montgomery (60 N. Y. 648) and Hewett v. Chapman (49 Mich. 4) are cases of direct attack upon the verdict, wherefore the jurors were excluded from impeachment of it. I cannot find that Smith v. Cheetham (supra) was ever directly overruled, although Sutherland, J., in Sargent v. - (5 Cow. 106), says that it must be deemed to be overruled in Dana v. Tucker (4 Johns. 487), where, however, it is not even mentioned. But my brother says that Kent, Ch. J., dissented in Smith v. Cheetham, and that his view prevailed in New York. My brother then cites Clum v. Smith (5 Hill, 560) and Williams v. Montgomery (60 N. Y. 648), which cases presented direct attacks upon the verdict. Kent, Ch. J.’s dissent in Smith v. Cheetham (supra), which is limited to exclude willfulness and fraud, rests upon Vaise v. Delaval (1 Term. B. 11) alone. And the latter case is cited in Clum v. Smith (supra), together with Owen v. Warburton (1 Bos. & Pull. [N. C.] 326) and Dana v. Tucker (4 Johns. [429]*429487). Clum v. Smith, with Coster v. Merest (3 Brod. & Bing. 272), are the two cases cited in Williams v. Montgomery (supra).
Vaise v. Delaval seems the pioneer case. To my mind it is neither precedent nor authority here. A motion was made to set aside a verdict upon affidavits of two jurors that the jury, being divided in their opinion, tossed up and the plaintiff’s side won. Lord Mansfield, Ch. J., in an opinion of six lines, decided that the court could not receive such an affidavit from any of the jurymen, “ in all of whom such conduct is a very high misdemeanor,” but in every such case the court must derive their knowledge from some other source, “ such as from some person having seen the transaction through a window or by some such other means,” and the rule was refused. This decision was examined at great length and disapproved so far as it expressed a general rule, by Livingston, J., in Smith v. Cheetham (supra), who wrote one of the prevailing opinions, and the decision was evidently disapproved by Spencer, J., who likewise wrote. Livingston, J., declared it no precedent, in that it had been decided since the Revolution. An eminent writer on evidence discusses Vaise’s case at length, and protests against its misapplication as stating the general rule, especially at his section 2352. (Wigm. Ev.) I have thus noticed it for the reason that it is cited by Kent, Ch. J., dissenting in Smith v. Cheetham (supra) and also in Clum v. Smith (supra). In addition to the citation of Vaise’s case in Clum v. Smith (supra), there is cited Owen v. Warburton (supra). This is a decision by Sir James Mansfield, Ch. J., who refused affidavits of the jurors to show that the verdict had been rendered by lot, lest it might prompt some juror, friendly to a party, to propose such scheme and then, when chance decided it against his friend, to upset the verdict by revelation of the method. In Williams v. Montgomery (supra) the Court of Appeals in its memorandum decision that declared jurors could not be heard to impeach their verdict, cited only Clum v. Smith and Coster v. Merest (supra), which was a rule nisi for a new trial when the Court of Common Pleas refused affidavits from the jurymen, thinking it might be of pernicious consequence in any case. Under the penalty of reiteration, I point out that in [430]*430every case mentioned there was a direct attack upon the verdict, and that the jurymen were rejected because they would not be heard to impeach their verdict.
Vaise’s Case (supra) does not decide any principle that applies to the case at bar, and it does not contain any dictum or reason that supplies an argument by analogy. And for the reason that Vaise’s case was a direct attack on the verdict, the jurors were refused as affiants because they showed that all of the jurors, including the affiants, were guilty of a high misdemeanor, while in the case at bar there was not and there could not be any attack upon the verdict, and the witnesses testified to the isolated piece of misconduct of one of their number independent from any action on their part. I find in none of the cases any decision or dictum or expression that justifies the exclusion of these witnesses, provided there is no attack upon the verdict. And even, as I have shown, in an attack upon the verdict in Smith v. Cheetham (supra), the court denied the application of Vaise’s case. I am not contending against decisions, but I am showing that there is none in point or in reasoning that makes against me in the case at bar.
But it is also said by my brethren that the principle of the secrecy of the jury room must prevail. The public policy of this principle of secrecy is in the furtherance and assurance of free, fearless and untrammeled deliverance upon the evidence, and for that reason the proceedings of the jurors preliminary to the verdict —■ the talle, discussions, informal votes and the like — are declared inviolable for all time. Such doings are within the discharge of the duty cast upon the jury to decide the case upon the evidence. Such doings preliminary to the verdict' are merged in it, and are inherent in it as the vere dictum. But conduct of a juror during the deliberations aimed to secure a particular verdict, by which in violation of his oath he should “ avail himself of the opportunity of adding to or detracting from the evidence by means of his own peculiar knowledge of any of the circumstances attending the transaction submitted to their consideration,” which “ would * * * violate his duties ” (Daniels, J., in People v. Zeiger, 6 Park. Crim. Rep. 355, 357), should not be contemplated as if preliminary to the verdict and inherent [431]*431in it, but —■ to quote the language of Cole, J.— such doing is a matter that does not “ essentially inhere in the verdict itself.” (Wright v. Illinois & Mississippi Telegraph Co., 20 Iowa, 195, 210.) This expression is approved by Wigmore on Evidence, section 2353. I see no justifiable reason, then, for the inclusion of such misconduct — a violation of oath and of function — as within the protection afforded to proper conduct, namely, due deliberations upon the evidence. I cannot see that the jurors would be deterred from full and free performance of their duties if such misconduct might be brought to light by their testimony. I cannot see that the jurors’ discharge of their lawful duties is safeguarded by immunity to one of their number who willfully violates those duties. The honest juror need have no fear of exposure even of his own part, if the principle is confined to its reason. The corrupt juror need have no fear of exposure, if the principle is extended beyond its reason.
How could exposure of the wrongdoer interfere with the principle that the legitimate discharge of the lawful doings of the jury preliminary to the verdict should not be disclosed? The jurors are not to be regarded as informers, but as witnesses summoned to testify. If they are not called to impeach their verdict, why should they be excluded as witnesses, to the end that the wrongdoer may escape unless it chance that some outsider may learn of his misconduct through a window (See Lord Mansfield, in Vaise’s Case, supra), or an eavesdropper happen to sit squat at the keyhole. I perceive no reason why the misconduct should be limited to acts, in contradistinction to words. Words are things, and wrongs may be worked by them. Should drunkenness of a juror be hable to exposure, and words whereby, e. g., a juror should offer $1,000 apiece to his fellows for a verdict for his friend, or should threaten that violence would follow any juror who voted against such friend, be protected — because such words are uttered while the jury are deliberating? There is no tangible proof of either misconduct other than the testimony of the jurors.
I find most persuasive authority for my contention in the Supreme Court of the United States in cases which even presented direct attacks upon the verdict. (Mattox v. United States, [432]*432146 U. S. 140; McDonald v. Pless, 238 id. 264, 268, 269.) In McDonald v. Pless (supra) the unanimous court, per Lamar, J., said: “ The rule on the subject has varied. Prior to 1785 a juror’s testimony in such cases was sometimes received though always with great caution. In that year Lord Mansfield, in Vaise v. Delaval, 1 T. R. 11, refused to receive the affidavit of jurors to prove that their verdict had been made by lot. That ruling soon came to be almost universally followed in England and in this country. Subsequently, by statute in some States, and by decisions in a few others, the juror’s affidavit as to an overt act of misconduct, which was capable of being controverted by other jurors, was made admissible. And, of course, the argument in favor of receiving such evidence is not only very strong but unanswerable — when looked at solely from the standpoint of the private party who has been wronged by such misconduct. The argument, however, has not been sufficiently convincing to induce Legislatures generally to repeal or to modify the rule. For, while it may often exclude the only possible evidence of misconduct, a change in the rule ‘ would open the door to the most pernicious arts and tampering with jurors.’ ‘ The practice would be replete with dangerous consequences.’ ‘ It would lead to the grossest fraud and abuse ’ and ‘ no verdict would be safe.’ (Cluggage v. Swan, 4 Binn. 155; Straker v. Graham, 4 M. & W. 721.) There are only three instances in which the subject has been before this court. In United States v. Reid, 12 How. [U. S.] 361, 366, the question, though raised, was not decided because not necessary for the determination of the case. In Mattox v. United States, 146 U. S. 140, 148, such evidence was received to show that newspaper comments on a pending capital case had been read by the jurors. Both of those decisions recognize that it would not be safe to lay down any inflexible rule because there might be instances in which such testimony of the juror could not be excluded without ‘ violating the plainest principles of justice.’ This might occur in the gravest and most important cases; and without attempting to define the exceptions, or to determine how far such evidence might be received by the judge on his own motion, it is safe to say that there is nothing in the nature of the present case warranting a departure from what is unquestionably the general [433]*433rule, that the losing party cannot, in order to secure a new trial, use the testimony of jurors to impeach their verdict. The principle was recognized and applied in Hyde v. United States, 225 U. S. 347, which, notwithstanding an alleged difference in the facts, is applicable here. The suggestion that, if this be the true rule, then jurors could not be witnesses in criminal cases, or in contempt proceedings brought to punish the wrongdoers is without foundation. For the principle is limited to those instances in which a private party seeks to use a juror as a witness to impeach the verdict.” The italics are mine.
' Of course, if there were contrary or conflicting decisions in our own State we would follow them in the absence of direct decision of the United States Supreme Court upon a question within its jurisdiction. But in the absence thereof, these cases in the United States Supreme Court are of the highest persuasive authority, and even a gratis dictum therein is entitled to the greatest respect. Moreover, when the question presented is one of general policy, a fortiori should we respect the declarations of the highest court of our land. (See remarks of Duer, J., in Stoddard v. Long Island R. R. Co., 7 N. Y. Super. Ct. 180, 188; Bell v. Perkins, 7 Tenn. [Peck], 261, 263.)
It seems to me that the learned and scholarly dissent characteristic of my brother Putnam is beside the mark. I could concur with him had the verdict been attacked, despite the authorities contra, for although the false answers were not made in the jury room the jurors were necessary witnesses to justify the finding of falsity. I would concur with him if the misconduct in the jury room should be resolved as of the deliberations of the jury upon the case as presented to them by the evidence, which alone it was their sworn duty to consider. But I think that neither reason nor policy should extend the protection of sanctity so it would shield even the briber or the bully, provided he attempted his work during the period of deliberation.
The dissent of my brother Kelly is put upon the ground that the proceedings against the relator were in violation of section 14 of the Civil Rights Law, which is as follows: “ A juror shall not be questioned, and is not subject to an action, [434]*434or other liability civil or criminal, for a verdict rendered by him, in an action in a court of record, or not of record, or in a special proceeding before an officer, except by indictment, for corrupt conduct, in a case prescribed by law.” I have heretofore attempted to show that this juror was not questioned for a verdict, and that he was not subjected to these proceedings for a verdict.
I think there should be no question as to the competency of these jurors as witnesses, when the feature of attack upon the verdict is not in the case. In Canal Bank of Albany v. Mayor, etc., of Albany (9 Wend. 256) the court, per Nelson, J., say: “ In the case of Smith v. Cheetham, 3 Caines, 57, no doubt was entertained by the court as to the competency of the confessions or admissions of the jury, if their own affidavits were admissible, and the only difficulty was the rule which rejected the evidence of the jurors themselves to impeach their verdict.” (See, too, Harris v. State, 24 Neb. 803, 809.) The statements of the relator were admissible. (Dodge v. State, 24 N. J. Law, 455, 461; State v. Williams, 30 Mo. 364. See, too, Richards v. State, 36 Neb. 17, 28; Ellis v. State, 33 Tex. Cr. Rep. 508.)
The case at bar is a practical illustration of the rule which I maintain. The verdict of acquittal had been rendered and the defendants thereby were freed. Thereafter these proceedings were begun in criminal contempt for false answers as to qualifications as a juror, and for misconduct as a juror. The proceedings in no way related to the verdict. Persons who had been jurors were called as witnesses. At the outset the court said to them: “ Before you answer any questions I think that it is well that I should state to you what the object is for calling you here. I do not propose to permit either counsel to inquire of you how you reached your decision in the Schwab case. That is your own private matter, and we will assume that you reached your decision upon your best judgment.” Their examination followed. Here was no analogy to the judges tempore Stuart Kings. All that the witnesses testified to was the declarations of the juror as to his personal knowledge and as to his belief founded thereon of the defendants’ innocence. As we have seen, such testimony could not be considered as openly or covertly an attack upon the ver[435]*435diet. It did not reveal any of the doings or the sayings of the jury in consideration of the evidence.
Second. Was there proof of the facts?
Criminal contempts in a criminal matter are declared within the purview of article 7 of title 2 of chapter 16 of the Code of Civil Procedure, by section 2148 of that Code. Therefore, we must consider whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination, and if there was such proof, whether there was upon all the evidence such a preponderance of proof against the existence of any of those facts that the verdict of a jury affirming the existence thereof, rendered in an action in the Supreme Court triable by a jury, would be set aside by the court as against the weight of evidence. (Code Civ. Proc. § 2140.) The rule of Gompers v. Bucks Stove & Range Co. (221 U. S. 448) afforded to the relator the presumption of innocence, required proof of guilt beyond a reasonable doubt, and protected him from testifying against himself. The proof that the relator made the answers that he did not know the defendants or their place was within the personal knowledge of the court, is thus returned and hence, is conclusive. (People ex rel. Barnes v. Court of Sessions, 147 N. Y. 296.) The proof of the statements of the relator to the jurors in their jury room appears in the testimony of several of the jurors, which was direct, unshaken on cross-examination, and was not contradicted.
As to the falsity of the answers to the assistant district attorney, the court as a trier of the facts had proof that the relator within the brief time that intervened his call as a petit juror and his verdict had made self-contradictory statements — not contrary, but contradictory. There was no direct proof which of these contradictory statements was false. The court very properly could consider the surrounding circumstances of the two contradictory statements. It could consider the fact that after the relator had become a juryman he informed his fellows, when they were in deliberation upon their verdict, that he did know the defendants and their place. The court might well have been at a loss to find explanation for such behavior in the jury room by a juryman who knew nothing of the defendants or of their place, for [436]*436his natural course would be to discuss the evidence, not to state falsely that he did know the defendants and their place and then attempt to give, as if from such knowledge, a personal opinion that made for acquittal. There is no suggestion of embracery or like improper pressure upon this juror. On the other hand, explanation of such conduct could be found in the fact that the juror did know the defendants and their place and had visited it. He might be a partisan of the defendants beyond the consideration of the evidence. He might have formed an honest opinion of the defendants’ innocence from his personal knowledge, despite the evidence. On the other hand, the relator could not thus serve the defendants unless he gained place in the jury box. This conduct as a juror disclosed a motive to become a juror. If a sound definition of conduct is “ acts adjusted to ends ” (Spencer’s Data of Ethics, 4), the court could conclude that the relator would have lied to the assistant district attorney rather than to his fellow jurymen. And for the reason that the relator had been warned by him who had the right of challenge that the People desired none but strangers to the defendants and their place as jurymen, and, therefore, relator’s admission of such knowledge presented him as objectionable to the People. And, on the other hand, the court could have considered that the relator could not have aided the defendants in the jury room, save by discussion of the evidence, if he was a stranger to the defendants and their place. Thus falsehood in the court room and truth in the jury room best served the purpose of the relator as indicated by his conduct in the jury room. Acts speak as well as witnesses. Further, falsehood in the examination did not show much temerity. There is no proof that the relator was sworn on the voir dire, and hence there was no pain of perjury. There was no great probability of detection, for the defendants lived and kept their place in a town or village other than that wherein the court was held. Moreover, the relator as a juryman likely enough could have supposed that his statements made in the secrecy of the jury room to his fellow jurors might never come to light. There is no support for the suggestion of the learned counsel that the relator may have visited the place after he was sworn as a juror and thus have become first acquainted with the defend[437]*437ants and their place, after he had denied .any knowledge of them or of it to the assistant district attorney. On the other hand, the juror Doncourt was asked on cross-examination: “ Q. When did he say he had been in the place? A. I don’t know that he made any statement as to the time, prior to the trial, of course.” As to the statements in the jury room, the misconduct was complete whether the statements were false or true.
I think that the court was justified in finding the conduct of the relator both in his examination and in the jury room was in its nature deliberate — a term that implies action after thought and reflection, and relates to the end proposed (People v. Hawkins, 109 N. Y. 411; Bouvier Law Dict. [Rawle’s 3d Rev.] “ Deliberate.”) Such finding but implies that the relator made false answers for the purpose of being accepted as a juror and attempted, in violation of his oath as a juror, to impress his fellow jurors as to the innocence of the defendants by his personal knowledge of them and of their place.
It is suggested that these utterances in the jury room may have been in casual conversation, innocent of any purpose. Perhaps mere assertion of acquaintance with the defendants and their place could or even should have been so regarded. But the statement of acquaintance was preliminary, followed by the expressions that the place was all right and was a correct place, a declaration of the relator’s belief in the innocence of the defendants. Certainly concession cannot go further than to admit that the entire conversation was equivocal, and thereupon we are confronted with the rule declared for the court by Denio, J., in People v. Hackley (24 N. Y. 78): “ The question whether the alleged offender really committed the act charged, will be conclusively determined by the order or judgment of the court; and so with equivocal acts, which may be culpable or innocent according to the circumstances; but where the act is necessarily innocent or justifiable, it would be preposterous to hold it a cause of imprisonment.”
It is suggested that the “ conviction ” of false statements to the assistant district attorney rests upon a “ confession ” of the relator without additional proof. But proof of the said statements made to the jurors in the jury room was not proof of a confession. Testimony that another did or said a thing is not testimony that he “ confessed,” for such testimony [438]*438is not as to what the other said he had done or had said in the past, but as to what the witness saw or heard the other do or say at a time then present. On consideration of all of the evidence, I think that within the rules heretofore stated it was sufficient to satisfy the court as “to the guilt of the defendant, so as to exclude any other reasonable conclusion.” (See Hopt v. Utah, 120 U. S. 430, 441.)
The suggestion that a juror with impunity may bring to bear his own experience in the doings of life does not make for the relator. His offending was that he stated to the jury, then in consideration of the verdict, his personal knowledge, as to the very issue on trial, and declared from this personal knowledge his belief of the innocence of the defendants. (See Lenahan v. People, 3 Hun, 164; affd., on opinion of Daniels, J., 62 N. Y. 623.) If a juror have knowledge of the very issue, he cannot in effect become a witness unsworn and not cross-examined. Section 413 of the Code of Criminal Procedure provides: “ If a juror have any personal knowledge, respecting a fact in controversy in a cause, he must declare it in open court, during the trial. If, during the retirement of the jury, a juror declare a fact, which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement must be sworn as a witness, and examined in the presence of the parties.” The rule and the reasons are well stated in Schmidt v. New York Union Mutual Fire Ins. Co. (1 Gray, 529, 535). And Daniels, J., writing for the General Term in People v. Zeiger (6 Park. Cr. Rep. 357) says: “ This is required by two prominent considerations: 1st. That the evidence shall be given under the sanction of an oath. 2d. That the parties may have an opportunity of knowing on what evidence the jury are to act; and a juror who should, after the jury have retired to their deliberations, avail himself of the opportunity of adding to or detracting from the evidence by means of his own peculiar knowledge of any of the circumstances attending the transaction submitted to their consideration, would not only violate his duties, but he would also be utterly unfitted for the position he was called upon to occupy.”
Third. Did the facts justify a finding .of criminal contempt?
[439]*439In determination whether the behavior of the relator was a criminal contempt we must look to the statute only. (People ex rel. Munsell v. Court of Oyer & Terminer, 101 N. Y. 245.) This is section 750 of the Judiciary Law. The part pertinent is subdivision 1, that reads: “ Disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority.” The statute does not purport to define or to describe the specific acts of behavior that constitute the contempt. The possible variations of conduct practically forbade “ disorderly.” “Disorderly, ” “ contemptuous, ” “ insolent, ’ ’ are all general terms. I think that “ disorderly ” and “ insolent ” imply contumacy or the like, and are not applicable, but that we must confine ourselves to “ contemptuous.” Contempts of the character now under consideration have been ascribed to violations “ of the rights of the public as represented by their constituted legal tribunals,” “ an offence against the court, as an organ of public justice,” “ an act tending to impede or frustrate the administration of justice,” “ a violation of the rights of the public as represented in their judicial tribunals,” “ committed against the majesty of the law or against the court as an agency of government,” and “ words or acts obstructing or tending to obstruct the administration of justice.” (People ex rel. Munsell v. Court of Oyer & Terminer, 101 N. Y. 245; Yates v. Lansing, 9 Johns. 417; Black’s Law Dict.; People ex rel. Gaynor v. McKane, 78 Hun, 161; State ex inf. Crow v. Shepherd, 177 Mo. 205; 7 Halsbury’s Laws of England, 280.)
And first as to the behavior under examination as a juror. Indifference is an element of a jury. (Capital Traction Co. v. Hof, 174 U. S. 15.) Our statute prescribes it. (Code Crim. Proc. § 387.) To that end is the right of challenge and with it the right of examination. In the case whence this proceeding arose, the counsel in charge of the prosecution declared to the relator after he was drawn as a juror, that the People desired an indifferent jury (as was their right), which was sought in a jury of those who did not know the defendants or their place then charged as disorderly. Thus the officer charged by law in the first instance to see that a jury was satisfactory to the People, had informed the relator of an objectionable [440]*440feature as far as the People were concerned in any man proposed as juryman in that case. If the relator did know the defendants and their place, he had fair notice that he was objectionable from the viewpoint of the People. He was chargeable with notice that his avowal of such knowledge might prompt further questions aimed towards bias, or subject him to a challenge peremptory; on the other hand, his disclaimer of such knowledge would naturally satisfy his examiner as to any objection founded upon that knowledge. If the relator appeared as of the first twelve persons approved as indifferent, he must be sworn. (Code Crim. Proc. § 387.) This falsehood of the relator represented him as an indifferent juror, so far as a test applied by the People was concerned. And so far this falsehood tended to impede or to frustrate the administration of justice, to violate the rights of the People as represented in their legal tribunal that was to be constituted by a judge and twelve indifferent jurymen. This falsehood was uttered during the sitting of the court and in its immediate view or presence. And I think that such behavior was within the statutory words “ tending * * * to impair the respect due to its authority.” The authority of the court is the official power of the court. (Anderson’s Law Diet. “ Authority.”) The official power of the court was to try the indictment with a jury. The securing of the jury prescribed by law was within the authority committed by law to the court in the last instance, and was within its supervision. And this was a falsehood by a proposed juror, conscious that the purpose of the inquiry was as to his indifference, whereby he impaired the respect due to the court which required the truth.
• And second as to the behavior in the jury room. The relator had taken the oath as a juror which “ gives the measure of his duty. He is to well and truly try the issue joined,” etc. (Elbert, Ch. J., for the court, in Stratton v. People, 5 Col. 276,277.) The return shows that he had answered the assistant district attorney that he would try the cause only upon the evidence given by the witnesses, but he did not. Nor did he leave his fellows so to do, in that he declared to them during their deliberations that he knew the defendants and their place, that he had visited it on several occasions [441]*441and that in his opinion the place was all right and correct. Thus avowedly upon his personal knowledge he gave evidence as a witness upon the very issue, namely, whether the defendants kept that place as a disorderly house and a public nuisance. He departed from his office as a juror, to demean himself while a juror as a witness unsworn and not cross-examined, or as an advocate.
Such behavior was during the sitting of the court, and in its immediate view and presence (People ex rel. Choate v. Barrett, 56 Hun, 351; affd., 121 N. Y. 678), and I think that such behavior was contemptuous. The kind of contempt as is within the purview of the statute has further been described as a willful attempt of whatsoever nature to influence jurors improperly in the impartial discharge of their duties, whether it be by conversations or discussions. (9 Cyc. 15, cited in Emery v. State, 78 Neb. 547; 9 L. R. A. [N. S.] 1124. See, too, State v. Jones, 29 S. C. 201, 233.) I fail to perceive why the circumstance that the offender was a juror can affect the principle. It seems to me a fortiori that such act was flagrant. The pertinent principle may be found in the leading case of People ex rel. Munsell v. Court of Oyer & Terminer (supra). The charge against petit juryman Munsell was that he privately visited the scene of the affray. Although it had been alleged that he had made that visit against the orders of the court, it was conceded that there had been no order of the court. In the course of the discussion, the court, per Finch, J., in comment says: “ On the face of the order it is recited that he wilfully disobeyed the command of the court. If that was true there was a criminal contempt; but it is here conceded not to be true, and that no order of the court was disobeyed.” The principle that survives is this: If, as declared, Munsell would have been guilty of a criminal contempt had there been an order of the court, this juror was guilty of a criminal contempt in that he disobeyed his oath to determine the case only upon the evidence. The obligation of the oath had as much legal solemnity as the order of the court—■ both regulated the duty of the juror. And I think that such behavior went to impair the respect due to the authority of the court. At the time in question the court in the contemplation of the law consisted both of judge and jury. The [442]*442authority of the jury was the power to decide the case upon the evidence given by the witnesses. And with such power was correlated the duty to consider the evidence only. If this juror wittingly sought to influence the jury by matters extrinsic to the evidence, his act tended to impair the respect-due to the authority of the court.
The return does not show that the relator was sworn before he made the answers as to his qualifications. But I think that the question of his contempt in his false answers would not be affected if those answers were made without oath. The oath is not a prerequisite, for its purpose is to subject the falsifier to the pains of perjury (Bouvier [Rawle’s 3d Rev.], 2566), and, under our statute, to eliminate challenge for actual bias. (Code Crim. Proc. § 376.) The effect of the answers, save upon the relator, was the same whether he was sworn or not. I perceive no logic in the proposition that the commission of perjury is essential to a contempt by false answers. I know of no rule, no requirement of statute that a proposed juror must be sworn before he answers the questions as to his qualifications, at least in the absence of objection or request. I find no provision of statute law upon the subject, while the reference to the declaration on oath in section 376 of the Code of Criminal Procedure would seem to indicate that an oath was not in contemplation at the outset of an inquiry as to the expression or formation of an opinion, etc. In Zell v. Commonwealth (94 Penn. St. 258, 272), when the trial court allowed the prosecution to challenge jurors for cause on account of answers made without the jury having been first sworn on the voir dire, the court held that in the absence of objection, exception or request there was no error. To the same effect, see State v. Hoyt (47 Conn. 518, 520); Bracken v. Preston (1 Pinney [Sup. Ct. of Wis.], 365, 368); United States v. Cornell (2 Mason, 91, 105). In the case last cited, Story, J., says: “ The objection, however, affects to place some reliance upon the fact, that the jurors were not sworn or affirmed to the truth of their statements. But this was surely unnecessary, where no doubt was entertained of their perfect veracity. I agree with the doctrine laid down in the book cited by the prisoner’s counsel, that where the jurors challenge themselves, they [443]*443may be sworn to the truth of their asservations. (1 Chitty Criminal Law, 443.
It is contended by the learned counsel for the relator that the testimony of the jurors was not competent. This contention rests upon the rule that the jurors could not impeach their verdict — which I have attempted to show has no application in this case.
The learned counsel contends that the moving papers on the motion were a nullity and the proceedings void. This proceeding was instituted by an order to show cause upon affidavits. The relator appeared on the return day and was represented by counsel. He moved for dismissal on the insufficiency of the moving papers, and asked time for argument. The case was continued, but it does not appear that the motion was argued or pressed, and the court without objection proceeded with the examination of the jurors. The appearance and submission to a hearing on the merits was a waiver of any defects that might be in the preliminary process, and conferred jurisdiction of the person. (Bowman v. Seaman, 152 App. Div. 693, 694, citing Sweeney v. O’Dwyer, 197 N. Y. 499; People ex rel. Barnes v. Court of Sessions, supra, 295.)
I am of opinion that an appeal from the order that declares a criminal contempt committed in a criminal case does not he, but that the proper remedy is certiorari. (People ex rel. Taylor v. Forbes, 143 N. Y. 223. As to the general principle, [444]*444see New Orleans v. Steamship Co., 20 Wall. 387, citing inter alia Crosby’s Case, 3 Wilson, 188 [see pp. 202, 203, 204]; Dodd v. Una, 40 N. J. Eq. 672, 715.)
I advise dismissal of the appeal, and affirmance of the order.
Rich and Jay cox, JJ., concurred; Putnam and Kelly, JJ., read for reversal.
1st Am. ed.— [Rep.