P’OELEY, J.
This case was here on a former appeal. The judgment ^appealed from was reversed, and the case was sent back to the trial court'for a new trial. 44 S. D. 273, 183 N. W. 652. The case was retried, and appellant was again convicted. From the judgment of conviction and from' an order denying appellant a new trial, he brings the case here on a second appeal.
At the commencement of the first trial appellant entered a plea of not guilty and proceeded! with the triál. At the beginning of the second trial he asked permission to withdraw his plea of not guilty, in order that he might interpose a demurrer to the information. This request was denied, and .error is assigned. Permission to withdraw a plea of not guilty for the purposes of filing a dilatory plea is discretionary with the trial court, and when no substantial right of the defendant has been invaded by the refusal of such request the ruling of the trial court will not be disturbed on appeal. 16 C. J. 396.
Some of the matters that were presented and disposed of by this court on the first appeal are again presented and reargued on this appeal. Such matters have been given consideration by the court, but after such consideration wfe are satisfied with the conclusion reached on the first appeal, and as to such matters no further reference will be made.
The information, in substance, charges: That on the 6th day of September, 1919, the Firemen’s Insurance Company of Newark, N. J., issued to appellant a policy, being a standard South Dakota policy, by the terms of which a certain 2'J^-story frame building situated on a certain described tract of land in Minnehaha county was insured in the su!m of $2,500; for the term of one year from the date of said policy. That within the said term, to wit, on the 24th day of November, 1919, the said building was totally destroyed by fire. That during the time- covered by said policy of insurance, and prior to the destruction of said building, appellant had secured policies of insurance, insuring said property [7]*7“against like loss or damage by fire,” aggregating the sum of $27,500. That on or about the 9th day of January, 1920, appellant made out and presented! to said Firemen’s Insurance 'Company, through its agent at Sioux Falls, a proof of loss whereby appellant claimed and represented that the cause of the fire that destroyed the said building “was unknown; that the said building was occupied as a residence and summer hom'e; that the value of the said building was $30,000; that said fire did not originate by any act or design or procurement on the part of the said George W. Egan, or in consequence of any fraud or evil practice done, or suffered to be done, by said assured; that nothing had been done by or with the said George W. Egan’s privity or consent to violate the conditions of said- policy of insurance theretofore issued by the Firemen’s Insurance Company, or to render said policy void.”
It is then alleged that the above statements set out in said-proof of loss were false and fraudulent and were known to be false and fraudulent by the said defendant when they were made, in that the said building had not been totally destroyed, for that the basement and foundations remained intact; that the cause of the said fire was at the time known to the said George W. Egan, and that he him-self had caused the said fire to be started for the purpose of destroying the said building; that the said building bad not been occupied by the said1 George W. 'Egan as a residence or summer home, nor had it been occupied as a home or summer residence by any one during the time said insurance was in force, but that it had been used as a dancing pavilion and place for the storage of household goods; that the said building was not worth $30,000, as claimed and represented by appellant, but was of the value of approximately $2,000; that the said fire and destruction of the said building was procured by the said George W. E'gan with the fraudulent Intent of collecting -money from- said insurance companies greatly in excess of the value of the said -building.
Appellant -contends- that the trial court erred to his prejudice in the admission of any evidence, on the grounds that the information does not conform to the provisions of section 4771, R. C. ; that the information charges more than one offense; that the information does not describe a public offense; that no venue is laid, and that the court is without jurisdiction in the case; that [8]*8the information does not state facts sufficient to. constitute a public offense; that the insurance policy described in the information is not a standard policy under the law of this state; that the information does not -allege a purpose to defraud the insurance company therein described; that the information contains no allegations that any false proof of loss was presented to. the said insurance company, or to any person or agent of said company; that no public o-ffense can be predicated upon a statement of value in a standard; policy because the policy itself fixes the value.
No error was committed by the trial -court in overruling the above objections. In the first place, wit-h- the exception of tire question of venue, which was disposed- of on the first appeal, and the question whether the information describes a public offense, these are all questions that should'have been presented -by demurrer (section 4771, R. C.), and under the provisions of section 4779 can be presented only on demurrer. In the second place, we have examined all of these questions and fail to find that appellant was- in any manner prejudiced by the rulings complained of. Had all of these matters been presented on dtemurrer and had su-ch demurrer been sustained, a new information could have been filed and a short delay in the trial would have been the only result.
It is contended -by appellant that the information fails to describe a public offense, for the reason, among .others, that it fails to allege that appellant presented a false or fraudulent claim, again-st the said insurance -company, -but alleges only that he presented a false and fraudulent proof of loss. T-he language of the information is that appellant presented! a false and fraudulent claiml and proof in support of such claim and! proof of loss. The information is drawn under the provision of section 42-71. This section, so far as- material, reads as follows:
“False Proofs of Loss in Insurance. Every person who presents or causes to be presented -any false or fraudulent claim or proof in support of any such claim, upon any contract of insurance,” etc.
In view of this statute, appellant’s contention on this point is specious to say the least.' The information very closely follows the language of the statute. It is the making- of a false or fraudulent clai-m for a loss covered by the policy that -constitutes the [9]*9gist of the offense, and it is provided 'by the policy itself that 'claims for loss shall be made by presenting a proof of loss. And when the proof of loss is. false or is made in furtherance of a fraudulent design or scheme to defraud an insurance company, the provisions of the statute are violated, and the offense is complete. This is the construction that has been put upon this section in New York (People v. Markheim, 162 App. Div. 859, 148 N. Y. Supp. 155), where such statute has been in force since 1865. Section 644, N. Y. Pen. C. 1865 ; section 1202, Gilbert’s Crim. Code N. Y. 1922.
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P’OELEY, J.
This case was here on a former appeal. The judgment ^appealed from was reversed, and the case was sent back to the trial court'for a new trial. 44 S. D. 273, 183 N. W. 652. The case was retried, and appellant was again convicted. From the judgment of conviction and from' an order denying appellant a new trial, he brings the case here on a second appeal.
At the commencement of the first trial appellant entered a plea of not guilty and proceeded! with the triál. At the beginning of the second trial he asked permission to withdraw his plea of not guilty, in order that he might interpose a demurrer to the information. This request was denied, and .error is assigned. Permission to withdraw a plea of not guilty for the purposes of filing a dilatory plea is discretionary with the trial court, and when no substantial right of the defendant has been invaded by the refusal of such request the ruling of the trial court will not be disturbed on appeal. 16 C. J. 396.
Some of the matters that were presented and disposed of by this court on the first appeal are again presented and reargued on this appeal. Such matters have been given consideration by the court, but after such consideration wfe are satisfied with the conclusion reached on the first appeal, and as to such matters no further reference will be made.
The information, in substance, charges: That on the 6th day of September, 1919, the Firemen’s Insurance Company of Newark, N. J., issued to appellant a policy, being a standard South Dakota policy, by the terms of which a certain 2'J^-story frame building situated on a certain described tract of land in Minnehaha county was insured in the su!m of $2,500; for the term of one year from the date of said policy. That within the said term, to wit, on the 24th day of November, 1919, the said building was totally destroyed by fire. That during the time- covered by said policy of insurance, and prior to the destruction of said building, appellant had secured policies of insurance, insuring said property [7]*7“against like loss or damage by fire,” aggregating the sum of $27,500. That on or about the 9th day of January, 1920, appellant made out and presented! to said Firemen’s Insurance 'Company, through its agent at Sioux Falls, a proof of loss whereby appellant claimed and represented that the cause of the fire that destroyed the said building “was unknown; that the said building was occupied as a residence and summer hom'e; that the value of the said building was $30,000; that said fire did not originate by any act or design or procurement on the part of the said George W. Egan, or in consequence of any fraud or evil practice done, or suffered to be done, by said assured; that nothing had been done by or with the said George W. Egan’s privity or consent to violate the conditions of said- policy of insurance theretofore issued by the Firemen’s Insurance Company, or to render said policy void.”
It is then alleged that the above statements set out in said-proof of loss were false and fraudulent and were known to be false and fraudulent by the said defendant when they were made, in that the said building had not been totally destroyed, for that the basement and foundations remained intact; that the cause of the said fire was at the time known to the said George W. Egan, and that he him-self had caused the said fire to be started for the purpose of destroying the said building; that the said building bad not been occupied by the said1 George W. 'Egan as a residence or summer home, nor had it been occupied as a home or summer residence by any one during the time said insurance was in force, but that it had been used as a dancing pavilion and place for the storage of household goods; that the said building was not worth $30,000, as claimed and represented by appellant, but was of the value of approximately $2,000; that the said fire and destruction of the said building was procured by the said George W. E'gan with the fraudulent Intent of collecting -money from- said insurance companies greatly in excess of the value of the said -building.
Appellant -contends- that the trial court erred to his prejudice in the admission of any evidence, on the grounds that the information does not conform to the provisions of section 4771, R. C. ; that the information charges more than one offense; that the information does not describe a public offense; that no venue is laid, and that the court is without jurisdiction in the case; that [8]*8the information does not state facts sufficient to. constitute a public offense; that the insurance policy described in the information is not a standard policy under the law of this state; that the information does not -allege a purpose to defraud the insurance company therein described; that the information contains no allegations that any false proof of loss was presented to. the said insurance company, or to any person or agent of said company; that no public o-ffense can be predicated upon a statement of value in a standard; policy because the policy itself fixes the value.
No error was committed by the trial -court in overruling the above objections. In the first place, wit-h- the exception of tire question of venue, which was disposed- of on the first appeal, and the question whether the information describes a public offense, these are all questions that should'have been presented -by demurrer (section 4771, R. C.), and under the provisions of section 4779 can be presented only on demurrer. In the second place, we have examined all of these questions and fail to find that appellant was- in any manner prejudiced by the rulings complained of. Had all of these matters been presented on dtemurrer and had su-ch demurrer been sustained, a new information could have been filed and a short delay in the trial would have been the only result.
It is contended -by appellant that the information fails to describe a public offense, for the reason, among .others, that it fails to allege that appellant presented a false or fraudulent claim, again-st the said insurance -company, -but alleges only that he presented a false and fraudulent proof of loss. T-he language of the information is that appellant presented! a false and fraudulent claiml and proof in support of such claim and! proof of loss. The information is drawn under the provision of section 42-71. This section, so far as- material, reads as follows:
“False Proofs of Loss in Insurance. Every person who presents or causes to be presented -any false or fraudulent claim or proof in support of any such claim, upon any contract of insurance,” etc.
In view of this statute, appellant’s contention on this point is specious to say the least.' The information very closely follows the language of the statute. It is the making- of a false or fraudulent clai-m for a loss covered by the policy that -constitutes the [9]*9gist of the offense, and it is provided 'by the policy itself that 'claims for loss shall be made by presenting a proof of loss. And when the proof of loss is. false or is made in furtherance of a fraudulent design or scheme to defraud an insurance company, the provisions of the statute are violated, and the offense is complete. This is the construction that has been put upon this section in New York (People v. Markheim, 162 App. Div. 859, 148 N. Y. Supp. 155), where such statute has been in force since 1865. Section 644, N. Y. Pen. C. 1865 ; section 1202, Gilbert’s Crim. Code N. Y. 1922. It is not contended by appellant that the information is not sufficiently specific so that a person of common understanding would know what is intended, and if it can be so understood then it is sufficient in law. Sections 4725, 4726, R. C.; State v. Morse, 35 S. D. 18, 150 N. W. 293, Ann. Cas. 1918C, 570; People v. Lauman, 187 Cal. 214, 201 Pac. 459.
At the trial the state introduced in evidence certain policies, articles of incorporation, and certificates of authority to do business of insurance companies other than the Firemen’s Insurance Company, and the admission of these exhibits is assigned as error. These exhibits were introduced for the purpose of showing what the state claimed to be excessive insurance carried by the appellant on the building involved! and the false representations made by the appellant relative to the value of said building. Upon this theory and for this purpose these exhibits were competent to go to the jury.
Error, is assigned upon the admission in evidence of two exhibits designated as Exhibits 32 and 33. These exhibits are written applications, made after the policy described in the information had been, issued, for additional insurance on the building involved. It is claimed iby the state that these applications contained certain matters of fact that were false and .misleading. These applications bore the signature of appellant. He claimed, however, that the matter claimed' by the state to' be material had been inserted by other parties after he had signed them and without his knowledge or authority, and for that reason they were incompetent and not binding on him. A witness on behalf of the state testified that he was present when these applications were prepared, and that certain of the matters. in question, which he specified had been inserted — and to appellant’s knowledge — 'before [10]*10they were signed. This was a. sufficient foundation for the admission of these exhibits.
Over objection by appellant the trial court admitted evidence to show the actual value of the building destroyed. The policy involved is a standard South Dakota policy, and contains the provision that:
“Except in case of buildings, where the amount insured upon the property shall be taken conclusively to be the true value thereof, as provided by section 9201, this company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs. * * * ”
And section 9201 provides:
“Whenever a policy of insurance shall be written or renewed to insure any real property in this state, including structures on land owned by another than the insured against loss by fire, tornado or lightning, and the property insured shall be wholly destroyed, without criminal fault on the part of the insured or -his assigns, the amount of insurance written in such policy shall be taken conclusively to be the true value of the property insured, and the true amount of loss, and measure of damages; and the court, upon rendering judgment against the insurance company upon any such policy of insurance, shall allow the plaintiff a reasonable attorney fee, to be taxed as a part of the cost.”
It is contended 'by appellant that because of this statute the value of the property is conclusively fixed, at the amount named in the policy, and that it is not competent to show that the value is different from that fixed by the policy. With this contention we d.'o not agree. However controlling this- section may be in a, civil action to recover on a policy of fire insurance, it has no application in a case like this; for here it is claimed1 that the property was destroyed through the “criminal fault” of appellant, and it ig so alleged in the information. Furthermore it is a criminal act to knowingly greatly magnify the value of destroyed property in a' proof of .loss, even though the insurance company would be bound by the amlount stated in the policy in a civil action.
It is contended by .appellant that the court erred in admitting in evidence the proof of loss set out in' the information. In support of this contention it is claimed by appellant that there is no evidence to show he ever presented, either in person, [11]*11or through the mail, or otherwise, the said proof of loss to the Firemen’s Insurance Company. That appellant went to the office of F. iC. Whitehouse & Ox in Sioux Falls, local agents for said insurance company, and madle out and signed and verified the said proof of loss 'before said! Whitehouse on the 9th day of January, 1920, is admitted by appellant; but he claims that he did not leave it at said office at that time, and it next appeared in the office of the said insurance company in Chicago; but through just what channel it found its way to that office is not made clear by the evidence and because of this fact appellant claims that the evidence does not show that the proof of loss was presented in Minnehaha county, and that for that reason the evidence does not show that the crime, if there was a crime, 'was committed in .said county. But the record does not support this position. W!e have the appellant’s written and signed declaration that he did present! said proof of loss to the agent of the said insurance company in Sioux Falls. On the 10th day of January, the day following the day on which appellant made out. the said proof of loss, appellant wrote the following letter addressed! to
“•Firemen’s Insurance 'Company, F. C. Whitehouse & Co., Sioux Falls, S. D. T am' handing you herewith a more elaborate and specific proof of loss, estimate of cost of rebuilding, and general information so far as I am able to give it, in connection with the destruction by fire of my> building on which you held insurance, November 34th, 19x9.”
This letter containing the “more elaborate and specific proof of loss” was mailed to and received by said insurance agency in Sioux Falls. This letter uncontradicted was sufficient foundation for the inference that the proof of loss was presented to said insurance company through its agent in Sioux Falls, Minnehaha county.
Appellant urges the insufficiency of the evidence to support the verdict. Upon this question the evidence shows that the building involved had been built for a hotel or boarding house some 30 odd years ago. It does not appear to have been a paying venture. It changed hands several times. Some years prior to its destruction it was changed1 into a dance hall, and a large dancing pavilion was attched to one side of the original building. How long the place was used as a dance hall does not appear, but [12]*12the evidence indicates that it had not been used for this purpose for some time prior to the time of its destruction. Appellant acquired title to the property about the 6th day of September, 1919. At that time it was in a run-down and dilapidated condition. The two upper floors were not used for any purpose. The plaster was off the walls in places. Part of the doors and windows were broken. Nor some six months prior to the middle of October, 1919, the lower floor had been occupied by one Nash and family.
Appellant paid approximately $7,000 for the property, but thijs included! 12^2 acres o|f land, the value of which was fixed by appellant at $400 per acre. This would amount to $5,000, as the cost of the land, leaving about $2,000 as the cost of the building. It had changed hands several times within a year or two last past, but the purchase price at no time exceeded that paid by appellant. It does not appear that the building was insured against loss by fire when appellant purchased it, nor does it appear to ever have been suggested that it was in danger fromi fire. But almost immediately after appellant acquired the property he began taking out fire insurance policies in various amounts from different insurance companies, until at the time of its destruction on the 24th day of November, 1919, he had it' insured for a total of $27,500. In applying for the various policies appellant represented the building to be worth $30,006.
It is claimed by the state that appellant purchased this property with, the intent and for the purpose of insuring it in an amount greatly in excess of its actual value, then burning it down1 and collecting the insurance. That the destruction of the building by fire was in his mind is evidenced by the frequency with which he mentioned the matter of fire to others. Nash, who lived in the house when appellant purchased it, moved out about the middle of October, but left some of his goods in the building. Appellant thereupon wrote Nash that he (appellant) w'ould not be responsible for the destruction by fire of the goods Nash had1 left in the house. When Nash moved out of the house one George Henderson moved in. Appellant employed Henderson to tear down and remove the dancing pavilion. Appellant also had a portion of the heating and plumbing material taken out of the house and moved away. The value of the material saved in this way was $500 to $700. Henderson testified that appellant spoke to’ him about fire [13]*13several times; that ¡he told Henderson not to leave the house a single night without letting him' (appellant) know about it; that on another occasion appellant asked him to go out to a farm near Colton and stay all night; that iwhen- Henderson commenced to wreck the d'ance pavilion appellant suggested that he pile the "lumber outside; that he would not like to pile it inside on account of the danger of fire. Henderson testified that he spoke to appellant about buying the dance hall and that appellant said he would not be responsible in case of fire; that he (Henderson) ought to take out some insurance on the personal property he had1 in the building; that he (appellant) had taken out $750 insurance on the contents of the building, and that he meant sorn/e of it to cover Henderson’s property.
On the 23d day of November appellant went to Henderson and informed himi that he wished to know the value of a piece of land in Buffalo county; that he must know .immediately, and requested Henderson to' go to Buffalo county and examine the land and report to appellant by telegraph. Henderson was not a real estate man and was not familiar with land values, but he did as appellant requested. He went to Buffalo county, found and examined the land and reported to appellant as directed. From there he went directly to some place in Minnesota and spent Thanksgiving Day with hip wife’s folks. On the 24th dhy of November, appellant had or pretended to have urgent business in :Sioux City and departed for that place. This left the building in question wholly deserted for the time being, and that night it burned to' the ground. That the fire was of incendiary origin there is no possible doubt and it is the theory of the state that the fire was started, by some person employed by appellant for that purpose.
Henderson testified that shortly after the fire he -had a talk with appellant, .in the course of which appellant said he meant that $250 of the insurance he carried should be on witness’ property. Henderson also testified that he talked with appellant about his (witness’) policy; that on another occasion appellant showed Henderson his policies and said: “George, we have won the game, I have paid my premiumjs and now, by God, I want my money; by God they have got to pay me.” This witness testified to other occasions when appellant talked about the possibility of the build'[14]*14ing burning. He said that he cooked his.breakfast in.the .house about 9 o’clock on the morning of November. 23d, that he was-in the house again just before he started for - Buffalo'- county about 4. o’clock that afternoon, and that there -was no fire in any stove in the .building, at that time. There was, evidence, competent to. go to the jury, to the effect that appellant visited the building in company with a .stranger who has not. since been seen in the vicinity — and whose absence has not been accounted for. On the! night of the fire and 'just prior to the', discovery of .the fire an automobile was seen to drive along the. road leading past the building. A short distance beyond the. building this automobile stopped. . The lights- wiere turned off and the car remained there about half an hour, when- the lights were turned on and the automobile driven, away. Very shortly after the automobile left the fire was discovered!. It was shown1 that other buildings owned by appellant, or in which be was 'interested, had burned, or had been damaged by fire, and that lie had collected insurance money for such damage. One of these buildings was a large barn in the vicinity of the building involved in this case, it was burned about three months prior to the fire in question. The origin of the fife w'as unknown, but according to the evidence on behalf of the state the building was insured for an amount greatly in excess of its value, which insurance was paid to appellant. These are the principal circumstances in support of the theory of the state, 'but there are many minor circumstances that indicate that appellant purchased the property in question pursuant to a preconceived plan to insure it for many times its value, then to burn it or cause it to be burned and collect the insurance. The evidence is abundantly sufficient to support such theory.
But even if the evidence were not sufficient to show that appellant was instrumental in the burning of the building, yet it is entirely sufficient to ¡sustain the falsity of the value placed upon the property in the proof of loss.
It is contended by appellant that the trial court erred to his prejudice in admitting evidence of the burning of the barn above mentioned, and' the collection by appellant of the insurance for the loss- thereof. As a general rule it is not competent on a' trial for one offense to admit evidence of other offenses, but there are exceptions to this rule, -and it is competent on questions of [15]*15intent or motive to .admit evidence of other offenses. People v. Panagoit, 25 Cal. App. 158, 143 Pac. 70. In the absence of evidence showing - the origin of the fire it is presumed to have been the result of accidental causes. But this presumption is materially weakened where the same person has a second fire a short time after the first, andi especially is this true where the property is heavily insured in both instances and neither of the fires can.be accounted.for except on .the ground of incendiarism. Again, this is not a prosecution for arson, and the evidence tending to prove arson was.admitted only for the purpose of proving the falsity of.the.statement in the proof of loss that the cause of the fire was unknown. Underhill Cr. Ev. § 153; Wigmore’s Ev. §§ 303-340-54-- The evidence complained' of is relevant to the issue, and it should not be held to be incompetent merely because it tends to prove some other independent, offense by appellant. Underhill. Cr., Ev. § 154.
■Complaint, is made ¡by appellant that the court erred to appellant’s prejudice in the giving of. certain instructions to the jury, and in the refusal to give other ifistructions ¡requested by him. The instructions. have been carefully gone over. The requested instructions are not such- as should,.be given to a jury in any case where there is any question to go to the jury, and were properly refused. ...
The only instruction, given that" merits consideration is one that left the jury to find whether the burned building was occupied! as a dwelling at the time of its destruction. It is contended by appellant that this issue, should not have been submitted to the jury., . But if appellant was of the opinion that this issue should not have gone to the jury he should- have made 'his objection before the instruction was given. Trial court’s rule 26 requires that all instructions be reduced to Writing and submitted to the parties to the action before given. If any instruction is objectionable to- either party, such objection shall be stated and the reason therefor given.
“Each counsel, or party, shall specify and state the particular ground! or grounds upon which the giving or rejection of any instruction' is objected to. It shall be insufficient to state generally that an instruction does or does not state the law, 'but it shall be necessary to specify clearly wherein any instruction, or part thereof objected to, is insufficient or does not state the law.”
[16]*16If no objection is made to an instruction before it is given •the parties - are deemed to have waived objection and consented that it be given, and a party cannot predicate error 'upon an instruction, to -the giving of which he has consented. Merely taking an exception to an instruction either before or after it has been-given is not sufficient to authorize this court to review the same on appeal.
Appellant contends that there was misconduct on the part of the state’s attorney in his closing argument to the jury and that such misconduct was prejudicial to appellant’s rights. Thi.s contention is based on the following statement alleged to have been' mad!e to the jury by the state’s attorney:
“Everybody in the state of -South Dakota knows that defendant is guilty; he is guilty. It isn’t a question of his guilt, but a question of whether he can- be convicted or not.”
It does not appear that this remark was called to the attention of the court when it was miade, if it was made, nor that the court Was asked to admonish, the jury to disregard- it, nor that it was called to the attention of the court at all. The state’s attorney made and filed an affidavit in which he positively denies having madfe the statement, as set out by appellant, an-d says that the statement that he made was different and has a different meaning than the statement set out by appellant. While the state’s attorney1 may have gone beyond the limit of strict propriety, we do not believe the appellant was prejudiced by what was said or that appellant believed at the time that be was being prejudiced, or he would have called the matter to the attention of the court at the time. But in any event the rights of appellant were protected by an instruction given by the-court. Upon this point the court charged the jury as follows:
“I further caution you, gentlemen of the jury, that you should not give 'heed to, or be influenced -by or pay an attention to any statement of -counsel or arguments by them which is not warranted and supported by the evidence or fair inferences drawn therefrom;-.”
This case is not at all parallel to State v. Vroman (S. D.), 188 N. W. 746, cited by appellant.
Appellant contends that he is entitled toi a new trial of this case because of -misconduct of certain of the jurors who [17]*17tried the case. This contention is based on affidavits of two members of the said jury, Walters and lAasen by name. In their affidavits these jurors state that the case was finally submitted to the jury on the 15th' day of April, 1922; that during the afternoon and evening of that day the evidence in the case was discussed ■by the jurors and several ballots taken; that Walters and Aasen believed the defendant to be innocent of the charge against him and voted not guilty; that u,p to 9 or 10 o’clock in the evening no verdict had been reached; thát they were tired of serving on the jury and1 desirous of finishing the case that they might be discharged and go to their homes; that they then entered into an agreement between themselves that they would determine what their verdict should be by cutting a deck of cards; that both would-cut and if A'asen cut the high card their verdict should be “guilty”; but if Walters cut the high card their verdict should be “not guilty”; that they then went “apart” from the other jurors and Walters took a deck of cards from his pocket; that they both-cut; that Aasen cut a queen and Walters cut a nine spot; that according to their agreement their verdict must be “guilty”; and that pursuant to such agreement they voted guilty when the next ballot was taken.
.So far as the printed record prepared and sent here by the appellant is concerned these affidavits are un-contradicted and the matters therein set out stand -as admitted facts. But such in reality is not the case. •All, or all but one, of the other jurors made affidavits to the 'effect that so far as they knew none of the acts described by Walters and Aasen ever took place; that during the time the evidence was being discussed by the jury Walters and Aasen mingled! with the other jurors and took part in such discussion as freely as the other jurors; that said Walters and Aasen were not at any time -by themselves, either in the toilet or at any other place; but that they were at all times w|ithin hearing of the other jurors, and that to the best of their knowledge nothing was said by said Walters or.Aasen relative to cutting cards.
It may be possible, though we dlo not believe it to be possible, that these two jurors could ¡have done what they say they did without some of the other jurors seeing them or knowing what: they wtere doing, and on more mature consideration this seems to have been the opinion reached by Walters and Aasen themselves, [18]*18for something, over a month after making these affidavits they ■made another affidavit very similar to the first, except that instead of going “apart” from the other jurors they went into the toilet where no other person could see what they did. Had they gone into the toilet as they now say they did, it is- not at all likely that they, or appellant, would have overlooked the fact when the first affidavits were prepared.
Another circumstance that renders the truth of , these affidavits highly improbable is the following: These jurors state in their affidavits that they told certain parties on the following day how they had arrived at their verdict and that the defendant himself knew it within a very few days. Defendant knew that if what these parties said about the verdict wte true it was of the utmost importance on hisi motion for a new trial, and as an experienced lawyer he knew how vital it was 'to him to secure-the proof of such fact at the very earliest moment possible, and before any possible misadventure 'might prevent the securing of such proof. ■ Yet five months were allowed to elapse after the rendition of the verdict before any affidavit was secured. From the standpoint of a lawyer such delay in a matter of such vital importance is not conceivable. The matter wlas submitted to1 the trial court on the motion for a new trial as a question of fact, but tire trial court was evidently of the opinion, as all of the members of this court, with one exception, certainly are, that the matter contained in these affidavits relative to- misconduct of the jury is a pure fabrication and upon that ground the motion was properly denied. In thus disposing of this question we assume, but do not (Decide, that the affidavits of Walters and Aasen were competent to> impeach the verdict.
While all of appellant’s assignments have not been discussed in this opinion, all have been considered, and after such consideration we are satisfied that appellant has had a fair trial, and that no prejudicial error is disclosed by the record.
The judgment and order appealed from are affirmed.