Similarly, prejudice must be shown when the jury takes documents into its deliberations. Posey and Michael v. State, (1955) 234 Ind. 696, 131 N.E.2d 145; McClanahan v. [5] State, (1954) 233 Ind. 365, 118 N.E.2d 734. The juror who had the notes testified that she made these simple notes at home without communication to or from another person.
It is difficult for us to perceive that such a situation existed in the case at bar as would call for action by the court before a hearing could be had in open court, but that matter is not argued, nor is it urged by appellant that he was harmed by the failure to have such a hearing before separation of the juror. In Posey, Michael v. State (1956), 234 Ind. 696, 131 N.E.2d 145, 54 A.L.R.2d 706, we pointed out that it was irregular for jurors to have access to law books during deliberations on a verdict and that we could not be deemed to approve such a practice, although we refused to reverse where there was no indication of harm to appellants. In the instant case we condemn any irregularities during the deliberations of the jury, but as it appears the jury separation did not concern or involve a matter connected with any issue in the case, but solely dealt with a juror's request to telephone about his personal affairs at home, which was entirely collateral and unrelated to the subject matter of the cause on trial and therefore could not have prejudiced appellant in any way, we do not believe there is error sufficient to reverse the cause.
If a juror's own affidavit impeaching his verdict may not be received, much less can a hearsay statement be given any effect. Posey v. State, 234 Ind. 696, 131 N.E.2d 145, 54 A.L.R. 2d 706. 4.
We have nothing before us upon which to base a conclusion that the exhibits influenced the jury and, therefore, hold with some good authorities that there was no error on this point. See Miller v. United States, 9 Cir., 1925, 4 F.2d 384, 5 Alaska Fed. 258, affirming 7 Alaska 252; Posey v. State, 1956, 234 Ind. 696, 131 N.E.2d 145, 54 A.L.R.2d 706; People v. Kirkpatrick, 1953, 413 Ill. 595, 110 N.E.2d 519; State v. Fuller, 1955, 203 Or. 608, 280 P.2d 980. It becomes unnecessary for us to decide whether these exhibits were admissible in evidence under the circumstances in which they were used here. The fourth issue raised in appellant's Brief is based upon specifications No. 2 and No. 3 and is to the effect that the indictment charged no greater offense than manslaughter because the element of "purpose" is omitted; and, therefore, the court erred in instructing the jury as to first and second degree murder.
Therefore we are bound to accept her affirmative answer, when polled on return of the verdict, that this was her verdict. Posey, Michael v. State (1956), 234 Ind. 696, 701, 131 N.E.2d 145, 54 A.L.R.2d 706; Meno v. State (1925), 197 Ind. 16, 26, 164 N.E. 93; Oster v. Broe (1902), 161 Ind. 113, 123, 64 N.E. 918. Furthermore, appellant asserts as error the fact that on several occasions appellant's counsel failed to object to testimony which could have been excluded.
We must conclude that the defendant was not prejudiced or harmed thereby. Posey, Michael v. State (1956), 234 Ind. 696, 131 N.E.2d 145; Deig v. State (1928), 200 Ind. 125, 160 N.E. 673; Hatton v. State (1925), 195 Ind. 618, 146 N.E. 577. Another error urged by the appellant is that the court sustained an objection of the state to the following question asked witness David Stewart on cross-examination by the appellant:
Although in the trial of criminal causes in Indiana the jury are the judges of the law as well as the facts, this does not take away from the court the right to advise the jury as to the applicable law. Posey v. State (1956), 234 Ind. 696, 131 N.E.2d 145, 147. For this reason reversible error has been found when juries have referred to law books during their deliberations. E.g. Newkirk v. State (1866), 27 Ind. 1; Jones v. State (1883), 89 Ind. 82.
The guilty verdict was affirmed. Accord, Posey v. State (1956), 234 Ind. 696, 131 N.E.2d 145. In Oldham v. State (1967), 249 Ind. 301, 231 N.E.2d 791, conversation between one of the jurors and a State's witness was held not to be reversible error.
While their affidavits will not be considered to impeach their verdict they may properly be [4] used to support the verdict. Posey v. State (1956), 234 Ind. 696, 701, 131 N.E.2d 145. Here every indication points to the fact that the juror's statements did not contribute in any way to the jury's final determination of the defendant's guilt.
In addition, case law has upheld ยง 19, supra. See, Posey, Michael v. State (1956), 234 Ind. 696, 131 N.E.2d 145; Beavers v. State (1957), 236 Ind. 549, 141 N.E.2d 118. The appellant also relies on the case of Trainer v. State (1926), 198 Ind. 502, 154 N.E. 273, in regard to reading to the jury from law books: