¶1concurring. I concur in the results reached by the majority only because we have previously held the same conduct to be nonprejudicial. Ashby v. State, 271 Ark. 239, 607 S.W.2d 675 (1980). However, I cannot agree with the majority if they are holding that the only two questions which may be asked of a juror are: (1) was there any extraneous or prejudicial information brought to bear upon your decision in this particular case; and, (2) was there any outside influence brought to bear upon your decision in this particular case?
¶2I do not believe the rule was intended to be restricted to these two specific questions. In the first place, I think the average juror would not have a complete understanding of what these general questions mean. More appropriate questions might be: “did the jury consider how long the defendant would serve under the present parole system;” “did the jury cast lots to determine the number of years they would impose in this case;” or, “did the jury look at a file which was left in the j ury room. ’ ’ If one j uror influenced the other jurors because of his erroneous belief about the possibility of parole, the whole verdict could be contaminated. If we refuse to allow the court to comment on the parole system, as we did in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), then certainly a juror should not be allowed to instruct the other members of the jury on the parole system. Rule 606 (b) of the Uniform Rules of Evidence is set out in the majority opinion; however, I would like to repeat the last part of that rule:
. . . but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.
¶3This rule is obviously intended to be a vehicle for use when there is evidence of prejudicial or improper conduct on the part of a juror.
¶4In the case of Lewis v. Pearson, 262 Ark. 350, 556 S.W.2d 661 (1977), we reversed the trial court because of a racist remark made by a bailiff. When an investigator’s file was left in the jury room with the defendant’s name on the tab, we returned the case to the trial court for a determination of whether the jurors had made use of the file. Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977). In Lewis we reversed and remanded even though the juror admitted hearing the slur but maintained it did not sway her opinion. In Hutcherson we remanded the case to the trial court for the purpose of examining the jurors about the possibility of their having examined the investigator’s file. In neither of these cases would the two fixed questions allowed by the majority opinion be appropriate or sufficient to learn whether the jurors had considered matters outside the evidence presented.
¶5I believe the purpose of Rule 606 (b) is to insure that jurors are not questioned about matters which are properly before them or about their deliberations on matters properly before them. However, the rule obviously has some further purpose, else the language used would have been omitted. The other language in the rule indicates it is proper to question jurors about matters being considered in deliberations which were improper. Of course, a juror could not be questioned until there had first been presented to the court evidence that extraneous, prejudicial or outside influence had probably been used and considered by the jury in arriving at a verdict. A wooden application of the rule which would restrict questions to the language in the rule is not, in my opinion, required. Such a strict application would not allow a juror to be asked whether he had accepted a bribe in the case. The questions should be limited to the purpose of the rule but questions should be presented in a manner which would apprise a juror of exactly what was being inquired into.
¶6I agree with the results reached by the majority in this case.