ASHBURN, J. I concur in the judgment and generally in the opinion of Mr. Presiding Justice Moore, but certain further observations seem to be in order. By citing or factually distinguishing Shipley v. Permanente Hospital, 127 Cal.App.2d 417 [274 P.2d 53, 48 A.L.R.2d 964], as we have done in Forman v. Alexander’s Markets, 138 Cal.App.2d 671 [292 P.2d 257] and De Wit v. Glazier, 149 Cal.App.2d 75, 82-83 [307 P.2d 1031], we tacitly lent approval to the doctrine that a constructive concealment by a juror on voir dire affords good ground for impeaching the verdict. The majority’s present failure to pass specifically upon the question leaves the Shipley case and its doctrine unchallenged. I think the law should be clarified in this regard.
Shipley v. Permanente Hospital, supra, holds that “proof of intentional (conscious) concealment’’ by the venireman is not essential (p. 423), saying at 424: “ ‘The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution.’ [Citations.] The deprivation of this inalienable part of the right to trial by jury without fault of the party prejudiced is independent from the intent of the juror to conceal and the means to show such deprivation should therefore not differ depending on whether the concealment was [267]intentional or not.” This language was used in affirming an order granting a new trial. There was no application for a hearing in the Supreme Court. The ruling seems to be opposed to a uniform current of authority in this State and in my opinion it declares a doctrine fraught with danger to the jury system.
The rule that the minds and the deliberations of jurors can occasionally be looked into after rendition of their verdict constitutes a narrow exception to the general recognition of the sanctity of the jury room. It should be carefully limited to cases of wilful concealment upon the juror’s voir dire examination. Otherwise, ingenious lawyers will be indefatigable in their efforts to examine the jurors after the event and to build constructive misconduct through synthetic concealment,—all based upon matters which were absent from the juror’s mind at the time of his examination and not suggested to him by the questions put on voir dire. When we reflect upon the fact that judges so often assign faulty reasons for sound rulings and that those reasons are then rejected though the ruling stands, it becomes apparent that the reasoning of jurors should not be the subject of later investigation and that the reasons assigned by one of them in support of the verdict should not open the doors of the jury room. Most people, including judges, harbor numerous latent prejudices which may bear upon their decisions at any time but are not recognized when inquiry is made as to their ability to be impartial in a particular case. All of our opinions are formed in the matrix of our heritage and the background of our experience. If they are to be indiscriminately examined after the event and disqualification imputed retroactively it will be an unfortunate effort to eliminate the human element from the judicial processes. If jurors are to be thus disqualified after the verdict, it will be a sorry day for the integrity of that invaluable aid to administration of real justice.
The fundamental considerations which underlie the privilege surrounding jury deliberations should not be overlooked. They are stated by Mr. Justice Cardozo in Clark v. United States, 289 U.S. 1 [53 S.Ct. 465, 77 L.Ed. 993], He says, in part: “The judge who examines on the voir dire is engaged in the process of organizing the court. If the answers to the questions are wilfully evasive or knowingly untrue, the tales-man, when accepted, is a juror in name only. His relation to the court and to the parties is tainted in its origin; it is a mere pretense and sham. What was sought to be attained [268]was the choice of an impartial arbiter. What happened was the intrusion of a partisan defender. If a kinsman of one of the litigants had gone into the jury room disguised as the complaisant juror, the effect would have been no different. The doom of mere sterility was on the trial from the beginning.” (P. 11.) “For the origin of the privilege we are referred to ancient usage, and for its defense to public policy. Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world. The force of these considerations is not to be gainsaid.” (P. 13.) “The privilege takes as its postulate a genuine relation, honestly created and honestly maintained. If that condition is not satisfied, if the relation is merely a sham and a pretense, the juror may not invoke a relation dishonestly assumed as a cover and cloak for the concealment of the truth. In saying this we do not mean that a mere charge of wrongdoing will avail without more to put the privilege to flight. There must be a showing of a prima facie case sufficient to satisfy the judge that the light should be let in.” (P. 14.)
Prior to Shipley v. Permanente Hospital, supra, 127 Cal.App.2d 417, the California cases uniformly applied the rule in terms of wilful concealment.
People v. Galloway, 202 Cal. 81, 86, 91 [259 P. 332], was a ease of active concealment and, as shown by the following passage, that was the basis of the ruling: “We think that People v. Fair, supra [43 Cal. 137], omits the recognition of a well-defined distinction which exists between a ease where a juror was not interrogated upon the subject, or where he admitted his bias and expressed the belief that he could lay it aside, and a case where a juror concealed his prejudiced state of mind when examined on his voir dire and entered upon the discharge of his duty as such juror while in such mental condition. In the second instance, actual bias becomes, where concealed, positive misconduct and continues to be such throughout such juror’s service on the case, and if such misconduct is not known to the accused until after the trial and verdict, we see no reason whatsoever why the court should not have power to grant to the accused a new trial, basing it upon said subdivision 3 of section 1181 of the Penal Code. ’ ’
Williams v. Bridges, 140 Cal.App. 537 [35 P.2d 407], is another case of actual concealment. The court, at page 543, quoted portions of the language of Clark v. United States, [269]supra, 289 U.S. 1, and People v. Galloway, supra, which are above set forth.
In Estate of Mesner, 77 Cal.App.2d 667, 674, 676 [176 P.2d 70], Mr. Justice Shinn stated the rule as follows, at page 676: “Affidavits of jurors may be received as to occurrences during the trial and the deliberations of the jury which tend to prove the existence of prejudice in the mind of a juror, which would prevent his acting as an impartial juror, where the state of mind is charged to have been entertained and to have been intentionally concealed during his voir dire examination. (Williams v. Bridges, supra; Gray v. Robinson, 33 Cal.App.2d 177, 183 [91 P.2d 194].) This is a recognized exception to the general rule that affidavits of jurors may not be received to impeach the verdict except upon the ground that it was arrived at by resort to chance.” In affirming an order granting a new trial the opinion emphasized the trial court’s “implied finding that he [the juror] was guilty of intentional concealment.” (P. 677.)
In Pollind v. Polich, 78 Cal.App.2d 87, 92 [177 P.2d 63], the rule of intentional concealment was again stated, but it was held that the challenged conduct of the juror did not measure up to that standard.
These cases are discussed in Shipley, supra, and differentiated upon the ground that they were not necessarily decided upon the theory that wilful concealment is of the essence. It appears, however, that such was the ground upon which those cases were decided and they should not be brushed aside upon the basis of what might have been the rationale of the particular rulings. The Shipley case does not mention Mast v. Claxton, 107 Cal.App. 59, 65 [290 P. 48], or George v. City of Los Angeles, 51 Cal.App.2d 311, 321 [124 P.2d 872],
In the Mast case, supra, a juror had failed to disclose the fact that one of the attorneys had previously represented him. At page 67 the court laid down this rule: “In order to justify the granting of a new trial on this ground it must be shown that some prejudice resulted to the appellant, or that there was a wilfully false and untruthful answer given by the juror, which would lead to the inference that the juror was animated by a dishonest motive in qualifying.” At page 69 it was said: “Furthermore, we do not believe that either the juror Neilson or respondent’s counsel were guilty of misconduct. It was undoubtedly a lapse of memory on the part of both, and the record is absolutely devoid of [270]anything that would tend to show any wilful misconduct.” The judgment was affirmed.
In the George case, supra, it was claimed that the court in denying a new trial had erred in rejecting the claim of irregularity in the conduct of juror Gates. This court, speaking through Mr. Justice McComb, said at page 321: “We are of the opinion that from the foregoing facts appealing defendant was not in any way prejudiced by the juror’s failure to understand the question and properly answer it. Therefore, since it is established that a motion for a new trial will not be granted upon the ground that a juror upon voir dire examination has incorrectly answered questions, in the absence of a showing that (1) prejudice has resulted to the appealing party, or (2) there were wilfully false and untruthful answers given by the juror which would lead to the inference that the juror was animated by a dishonest motive in qualifying, the trial judge properly denied the appealing defendant’s motion for a new trial predicated upon the alleged misconduct of Juror Gates (Mast v. Claxton, 107 Cal.App. 59, 67 [290 P. 48].) ” In response to an attack upon Juror Garland the court also said, on the same page: “There is, therefore, no showing that this juror wilfully concealed any fact from the court.” The Supreme Court denied a hearing.
The references to prejudice in the Claxton and George opinions supra, seem to point to cases such as Los Angeles County Flood Control Dist. v. Abbot, 24 Cal.App.2d 728, 741 [76 P.2d 188] ; Scott v. McPheeters, 52 Cal.App.2d 61, 66 [125 P.2d 868] ; La Gue v. Delgaard, 138 Cal.App.2d 346, 348 [291 P.2d 960] ; Irvin v. Padelford, 127 Cal.App.2d 135, 139-140 [273 P.2d 539], wherein it was held that the misconduct of the juror was not prejudicial because it did not affect the deliberations of the other jurors and the verdict was supported by sufficient votes without counting the disqualified juror. (See also Buckley v. Chadwick, 45 Cal.2d 183, 203 [288 P.2d 242].)
In Ross v. Lightner, 139 Cal.App.2d 756, 761 [294 P.2d 59], the court disposed of a claim of a juror’s misconduct by saying : “There is no evidence that he wilfully concealed that fact about which he was not interrogated. ’ ’
That the greater number of jurisdictions require wilful concealment in situations such as those now under discussion is attested by 66 Corpus Juris Secundum, § 22, at page 116. (See also Anno, in 38 A.L.R.2d at 645.) The following cases from other jurisdictions are likewise pertinent: Harrison v. [271]St. Louis Public Service Co., (Mo.App.) 251 S.W.2d 348; Lineker v. Missouri-Kansas-Texas R. Co., (Mo.App.) 142 S.W.2d 356; Barb v. Farmers Insurance Exchange, (Mo.) [281 S.W.2d 297, 302] ; Durham v. State, 182 Tenn. 577 [188 S.W.2d 555, 557, 160 A.L.R. 746]; Orenberg v. Thecker (Ct.App.Dist.Col. 1944), 143 F.2d 375; Childers v. Texas Employers’ Ins. Assn. (1954), 154 Tex. 88 [273 S.W.2d 587, 588],