82 So. 567
Ala. Ct. App.
1919
BROWN, P. J.

[1] That a juror “has a fixed opinion as to the guilt or innocence of the defendant, which would bias his verdict,” is a cause for challenge by the defendant, and it is the duty of the trial court, without aid of counsel, to ascertain whether jurors called for the trial of cases of this character are subject to challenge for сause. Code 1907, § 7276; Hammill v. State, 90 Ala. 577, 8 South. 380; Jackson v. State, 77 Ala. 18; Bales v. State, 63 Ala. 30; Hawes v. State, 88 Ala. 37, 7 South. 302; O’Rear v. State, 188 Ala. 71, 66 South. 81.

[2] The juror Hall, on the voir dire examination, in response to the question pro *120 pounded by tbe court, “Have you a fixed opinion as to the guilt or innocence of the defendant that would bias your verdict?” answered in the affirmative; and, on further examination, said that he did not know anything about the facts; that he had never heard the testimony; that it was from rumor that he had made up his mind. He was then asked by the court:

“In the event the testimony was different from what you have heard it was, and you were on the jury, Would you set aside your opinion and malee up your mind from the testimony aloneV’

To this question the juror answered, “Yes, sir.” On this showing, without more, the court refused to allow the defendants to challenge this juror.

In Jackson v. State, supra, it was said:

“While a juror should be above suspicion of bias or partiality, and while it is far preferable that no juror should have any previous opinion, such is impracticable, when crime ‍​​‌​​​​​‌‌​​‌‌‌​​‌​‌​‌‌‌​​‌‌‌​‌​‌​​​‌‌​‌​​​‌‌‌‌​‍necessarily becomes', more or less, the subject of discussion and common conversation. When, howevеr, such previous opinion is so fixed that it will bias the verdict on the rumored facts being proved, the juror is not free to impartially consider and weigh the evidence pro and con, or to make an unbiаsed application of the law, as pronounced by the court, to the facts, if proved as heard. A juror, having such fixed opinion, is not the impartial juror guaranteed by the Constitution.” (Italics supplied.)

In Long v. State, 86 Ala. 43, 5 South. 448, the court, in speaking of the juror there under consideration, said:

“Had this juror answered that he had a fixed opinion that would bias his verdict, th'is should probably, and ordinarily would, have terminated further inquiry. In such case, the belief of the juror that he could render an impartial verdict, uninfluenced by his opinion, is not conclusive; fоr such is the organization of the human mind that a person possessed of a fixed opinion cannot readily put it aside and try a case de novo and impartiаlly.”

In Ragsdale v. State, 134 Ala. 24, 32 South. 674, while the juror in the first instance answered the statutory question in the affirmative, after explanation and further interrogation by the court, he was again asked the questiоn, “Have you a fixed opinion as to the guilt or innocence of the defendant that would bias your verdict,” and answered, “No, sir; I .would be governed entirely by the evidence in the case.”

In Jarvis v. State, 138 Ala. 17, 34 South. 1025, neither of the jurors there in question stated that they ‍​​‌​​​​​‌‌​​‌‌‌​​‌​‌​‌‌‌​​‌‌‌​‌​‌​​​‌‌​‌​​​‌‌‌‌​‍had a fixed opinion that would bias-their verdict.

In Jones v. State, 181 Ala. 63, 61 South. 434, the jurors in question did not state that they had a fixed opinion that would bias their verdict. “Roemer answered that he had a fixed opinion, but that he would be governed by the evidence in the case, and the evidence alone and the law givеn by the court.”

These are the leading eases in this state touching the question under consideration, and none of them go to the extent of holding a juror competent who has answered in the affirmative that he has a fixed opinion as to the guilt or innocence of the defendant that ivould bias Ms verdict, on the mere further statement that “in the event the testimony was different from what hе had heard it was, and he was on the jury, he would set aside his opinion and malee up Ms mind from the testimony." Non constat, if the testimony given on the trial was in accord with what the juror had heard, the case of the defendant, so far as such juror is concerned, would be prejudged, and he would be denied the constitutional right of a fair trial by аn impartial jury. To afford such trial, the minds of the jurors should be in such state of freedom that they can give to the accused, no matter what the evidence may show, thе benefit of the presumption of innocence, as well as the benefit of a reasonable doubt arising from the evidence after considering the evidenсe in the light and under the influence of such presumption of innocence. Long v. State, supra.

We hold, therefore, on the facts as developed on the examination of the juror Hall, that he was subject ‍​​‌​​​​​‌‌​​‌‌‌​​‌​‌​‌‌‌​​‌‌‌​‌​‌​​​‌‌​‌​​​‌‌‌‌​‍to challenge for cause,' and the court erred in denying the defendant the right to challenge him.

[3] On the facts developed by the examination of the juror Jeter, we are not able to say that the court was in error in overruling! the defendant’s challenge. Jarvis v. State, supra; Long v. Stаte, supra; King v. State, 89 Ala. 146, 7 South. 750.

[4] The defendants, by submitting to a joint trial, could not deprive the state of the right to offer inculpatory evidence against one which, on a seрarate trial, would not have been admitted against the other. Therefore the objection of the defendant Polkes to the alleged confession of Bаxley that it was made when Polkes was not present was properly overruled. If Polkes anticipated prejudice from this evidence, he, at most, was entitled, on motion, to have its effect limited by appropriate instruction to the jury. Patterson v. State, 79 South. 459; 1 Mason and Franklin v. State, 42 Ala. 532. No such motion or request was made and, moreover, in the generаl oral charge of the court, the court clearly instructed the jury that such confession could not be considered against Polkes.

[5] The same observation applies to the confession made by Polkes as regards the rights of the other defendant. The predicate for the admission of such confessions prima faсie showed that they were voluntary, and the objections to the admission of this evidence was properly overruled. Whitehead *121 v. State, 78 South. 467; 2 Washington v. State, 106 Ala. 61, 17 South. 546; Beckham v. State, 100 Ala. 17, 14 South. 859; Presley v. State, 59 Ala. 98.

[6] The defendants’ objection to the question asked the witness Edwards, “When the game was over, what took place between Saunders and Folkes?” was properly overruled. It does not appear from the question that the facts were not material. On the contrary, it is apparent from the question that such facts might be material. The fact that Saunders and Folkes had a difficulty or altercation over a card game, the nature and gravity of such difficulty, was clearly admissible. Gray v. State, 63 Ala. 66; Wise v. State, 11 Ala. App. 72, 66 South. 128.

The defendants’ motion to exсlude embraced all the witness stated ‍​​‌​​​​​‌‌​​‌‌‌​​‌​‌​‌‌‌​​‌‌‌​‌​‌​​​‌‌​‌​​​‌‌‌‌​‍in answer to the question and was properly overruled.

[7] There is nothing in the evidence showing, or tending to show, a conspiraсy between the defendants and the witness Etheridge to assault Saunders, and the act of the witness in taking the shotgun from behind the door and carrying it down in the storeroom was not material or relevant to the issues ‘in the case, and on another trial should not be admitted. McAnally v. State, 74 Ala. 9.

[8] The state’s witness Etheridge, on his direct examination by the soliсitor, testified that, just before he left the store, “I told them I was going home, and told Saunders to come on and let’s go home, and he said, ‘All right,’ and somebody opened the door and I went out.” On cross-examination by the defendants’ counsel, he was asked about this conversation, and said, “When I went out of the front' door, I told Saunders to come on with me.” The defendants then asked the witness the question, “And he told you that he was not going, and that if you was any man, or any gentleman, you would stay there, didn’t he — something to that effect?” The court sustained an objection to this question, and in this committed prejudicial error. This question called for a part of the same conversаtion offered by the state, and the defendant was entitled to show the entire conversation. Davis v. State, 92 Ala. 20, 9 South. 616. Moreover, one theory of the state, as develоped in the evidence, seems to be that the defendant Folkes restrained Saunders in the storeroom until his companion had gone, for the purpose of оbtaining from Saunders money which he had won in tire card game, and after Saunders’ companion had left the store, Folkes assaulted him, and Baxley, going’ to Folkes’ aid, shоt and killed Saunders. The evidence called for by the question tended to rebut this theory.

We have examined the other questions arising on the admission and exclusion of evidence, and find nothing therein that warrants further discussion.

Charge 27, refused to defendant, was covered by given charges 26 and 28. The other charges refused to the defendant were either properly refused or covered by the given charges.

For the errors pointed out, the judgment ‍​​‌​​​​​‌‌​​‌‌‌​​‌​‌​‌‌‌​​‌‌‌​‌​‌​​​‌‌​‌​​​‌‌‌‌​‍is reversed, and the cause is remanded.

Reversed and remanded.

Notes

1

202 Ala.-65.

2

16 Ala. App. 427.