¶1(dissenting). There are two reasons, to my mind, why the judgment should not be reversed on account of the alleged misconduct of the juror, Bright, viz., that this was never presented to the court for a ruling, and that the affidavits do not establish facts sufficient to place the burden on the State of showing nonexposure of the juror to improper influences.
¶2We sit,here only to correct errors of the trial courts, and for that purpose to review the decisions of those courts. An unsuccessful litigant must first seek a correction of prejudicial matters before he can appeal to us. The record in this case shows affirmatively that the trial court was never in fact asked to grant a new trial on the ground of misconduct of the juror, and-that the trial judge never knew that such a ground for new trial was set up in the motion. If that had been brought to his attention, doubtless he would have called on the State’s representatives for an explanation as to the conduct of the juror, or at least have given the State an opportunity to show that the juror had not been subjected to any improper influences. I think the majority have missed the mark very far in saying that the court ought to have read the motion or caused it to be read before ruling on it, and could not deprive the defendant of a new trial by failing to do so. That is not the question. What we have to decide is, did the court err in refusing to grant a new trial on account of misconduct of one of the jurors? The court was not in fact asked to grant a new trial on that ground. Flow, therefore, can we say that he erred in refusing to do so?
¶3It is undoubtedly the better practice for trial courts to require all motions to be read over or the substance stated before ruling on them. But should we reverse a case on account of a ruling which the court never made, and was never asked to make, simply because it stands in the record as a part of the motion? The trial judge naturally assumed, from the conduct of counsel, that the motion contained no new matter, and that the rulings complained of were those which occurred during the progress of the trial. Counsel were a'sked by the court whether or not they desired to argue the motion, and were thus given the opportunity to present the new matter contained in the motion for the consideration of the court. By failing to call the attention of the court to it, they ought to be held to have .abandoned it.
¶4I do not think that the affidavits make a prima facie showing so as to place a burden on the State. They merely show that the juror stepped behind a house and later joined his fellows and the officer, who awaited him in front of the adjoining building. It is not shown how long he remained behind the building, nor the purpose of his visit there. That is left to conjecture. I think something more ought to be shown than a mere momentary separation. It ought to be shown that theie was an opportunity for exposure before the State should be required to assume the burden and show that .there was no-contaminating influence. That is what Judge Smiti-i meant by what is said in the Maclin case. In that case the juror went into a drinking saloon and remained there some time in-the hearing of comments on the trial. No effort was made to meet this by showing that he was uninfluenced by those comments.
¶5In a very recent case we said that “in criminal cases, where evidence is adduced tending to show that the jurors have been exposed to improper influences, the burden is on the State to-show that they were not in any way influenced, biased or prejudiced by such exposure.” Reeves v. State, 84 Ark. 569.
¶6For these reasons I dissent from the conclusion reached by the majority.