                          No. 13733
         IN THE SUPREME COURT OF THE STATE OF MONTANA
                             1977


STATE OF MONTANA,
                          Plaintiff and Respondent,
         -vs-
JOHN STOCKTON DAVISON,
                          Defendant and Appellant.


Appeal from:    District Court of the Sixth Judicial District,
                Honorable Jack Shanstrom, Judge presiding.

Counsel of Record:
     For Appellant:
         James A. Tulley argued, Big Timber, Montana
     For Respondent :
         Hon. Mike Greely, Attorney General, Helena, Montana
         Allen B. Chronister, Assistant Attorney General,
          argued, Helena, Montana
         Kenneth Olson, County Attorney, Big Timber, Montana


                                Submitted:         May 27, 1977
                                    Decided:.
                                           ~   d
                                                      .

Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

         Defendant appeals from an order of the district court,
Sweet Grass County, denying his motion for a new trial on the
grounds of jury misconduct during deliberations.
         On October 21, 1976, defendant was charged with theft
in violation of section 94-$-302(1) (a), R.C.M.   1947, and was
tried on November 29, 1976, in the Sweet Grass County courtroom
in Big Timber.   Because of bad weather and a cold jury room,
the trial judge suggested, at the conclusion of the case, that
he would clear the courtroom and permit the jury to deliberate
there rather than in the colder jury room.   Both counsel agreed
to this arrangement.
         The jury found defendant guilty and sentencing was set
for December 2, 1976.
         On the day after the jury verdict, defense counsel was
discussing the case with one of the jurors when the juror men-
tioned the jury did not understand some material contained in
the police report.   Counsel recalled that neither party had in-
troduced a police report in evidence and immediately went to the
clerk of court's office and asked to see the exhibits used at
trial.   The clerk of court produced the exhibits including:
         (1) a police report prepared by the undersheriff and
marked state's exhibit 7, but not introduced in evidence,and
         (2) a police teletype originating from the Big Timber
sheriff's office dated October 11, 1976, marked as state's
exhibit 8, but not introduced in evidence.
         On the sentencing date defense counsel moved for a new
trial on grounds the jury had viewed the police report and police
teletype.   All parties acknowledged the nonadmitted exhibits had
been inadvertently left in the courtroom when the jury started its
deliberations in the courtroom.   Defense counsel offered to
obtain juror affidavits stating the documents were circulated

by the jury during its deliberations, and the county attorney
admitted that they had been circulated.     The trial court then
postponed sentencing to consider the matter.

          The county attorney later filed a motion allowing him
to take juror affidavits to establish that the exhibits involved
did not prejudice defendant.     Defense counsel objected to this
motion, and again renewed his motion for a new trial.     The trial
court granted the county attorney's motion to obtain juror affi-
davits.     he county attorney then filed four affidavits which
in substance declared the jurors had looked at the nonadmitted
exhibits but that they did not affect their deliberations.
          At the sentencing hearing the court received the affida-
vits in evidence over defendant's objection, overruled defen-
dant's motion for a new trial, and sentenced defendant to ten
years in the state penitentiary.
          On appeal, defendant urges his motion for a new trial
should have been granted because of jury misconduct.    He claims
(1) that the exhibits in question were prejudicial to the de-
fendant, and (2) that the offered affidavits could not be re-
ceived to demonstrate the lack of prejudicial effect of the
jury's misconduct.
          We hold the district court should have granted defen-
dant's motion for a new trial.     The existence of the unauthorized

exhibits in the jury room during deliberations, when considered
with their tendency to give credibility to the testimony of the
prosecution witnesses, clearly demonstrated their prejudicial
nature.    While the jurors' affidavits were admissible to show
the existence of juror misconduct, they were not admissible to
show the jurors were not actually influenced by the unauthorized
evidence.
          Section 95-1913(c), R.C.M. 1947, provides that evidence
which may be taken into the jury room for deliberation may
include "   * * * all papers which have been received as evidence
in the   cause * * *". Where a jury has improperly (though inno-
cently) taken nonadmitted papers or documents and other articles
into the jury room, it is generally held the mere act of doing
so does not entitle a defendant to a new trial.      Rather, he must
establish he has been prejudiced.    Putro v. Baker   &   Mannix
Electric, 147 Mont. 139, 147, 410 P.2d 717; United States v.
Downen, 496 F.2d 314, cert.den. 419 U.S. 897, 95 S.Ct. 177, 42
L ed 2d 142.   If one can demonstrate material prejudice it is
axiomatic, of course, that one who would be so affected would be
entitled to a new trial.   Otherwise the defendant would be de-
prived of an impartial jury, the right to confront witnesses, and
the assistance of counsel at every critical stage of the trial.
This kind of situation is prima facie incompatible with the
Sixth Amendment to the United States Constitution, Government of
the Virgin Islands v. Gereau, 523 F.2d 140, and of course, im-
compatible with Article 11, Section 24 and the due process guarantee
of Article 11, Section 17 of the 1972 Montana Constitution.
         Since both sides agree that the jury improperly considered
evidence which was not part of the trial record, the question to
consider is whether it was prejudicial.   We confine our discussion
to the police report because we conclude the jury's use of the
police report constituted prejudice that was not overcome by the
prosecution.   The State contends that Officer Brannin could have
testified to the information contained in the police report any-
way and therefore that State v. Nelson,      Mont.         ,   560 P.2d
897, 34 St-Rep. 80 (1977) (inadmissible hearsay upon hearsay in
a police report) does not apply.    The State however, did not call
Officer Brannin, and the defendant was deprived of an opportunity
to cross-examine him.      Nevertheless, through the police report,
the jury had evidence that helped support the credibility and
statements of the prosecution witnesses who testified to the
facts contained in the report.      Under these circumstances the
trial court could not presume the police report was not preju-
dicial.      The jury deliberations had been tainted by their read-
ing of the nonadmitted police report.
            Admittedly, the only alternative left to the county
attorney was to obtain jury affidavits to the effect that their
deliberations were not influenced by the nonadmitted police re-
port.      Surely the affidavits were proper to show that the non-
admitted evidence was considered by the jury, but they were not
proper to show whether they in fact influenced the jury.        This
Court stated in Putro:
            " * * *'This court * * * has never held, and does
            not now hold, that, if the contact of the juror
            with outside, prejudicial influences be clearly
            demonstrated and uncontroverted, the juror may
            purge himself by testifying that such influences
            did not affect his judgment in forming his ver-
            dict.' * * *
            " * * *'There is no practicable method to so analyze
            the mental operation of the jurors as to determine
            whether, in point of fact, the verdict would have
            been the same if the trial had been conducted, as
            both parties had a right to expect, according to
            law and upon the evidence in court.' * * *" 147
            Mont. 147, 148.

As stated in United States v. Wilson, 534 F.2d 375, 378, the
juror's testimony regarding misconduct in that case could go
to   "   "' * * * facts bearing upon the question of the existence
of any extraneous influence, although not as to how far that
influence operated upon his nind."'"
            In the present case the State presented only the affi-
davits of four jurors who admitted to having considered the two
exhibits before the final vote.      All admitted that at least one
juror had not made up his mind before this last vote, and there

is no way of knowing which of the jurors held out until the final
vote.   Similarly, there is no way of knowing whether one of the
jurors who had considered the exhibits was one whose decision
was influenced by the exhibit.   Moreover, improper conduct of
one juror is chargeable to the whole panel.   Goff v. R f i x z e b
148 Mont. 61, 417 P.2d 105.
        Even assuming proper use of the affidavits, it is clear
the State did not demonstrate the lack of prejudice when it
offered only the affidavits of four jurors that their consider-
ation of extraneous evidence did not affect their verdict.
         In Putro, 147 Mont. 147, 148, this Court commented on
improper influences affecting one's right to a fair trial:
        "The guiding principle of our legal system is
        fairness. We must tenaciously adhere to the ideal
        that both sides of a lawsuit be guaranteed a fair
        trial. * * * We cannot be too strict in guarding
        trials by juries from improper influences. The
        strictness is necessary to give due confidence to
        parties in the results of their causes, and to en-
        lighten the public who have recourse to our courts
        that any improper influence which has the natural
        tendency to prejudice the verdict is grounds for
        a mistrial."
        Defendant's right to fairness can only be guaranteed by
a new trial.   We reverse the order of the district court and
remand the case for a new trial.



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