OalhooN, J.,
delivered, tbe opinion, of tbe court.
Was Mr. Neper properly adjudged competent as a juror ? • On his voir dire be said be bad beard state witnesses give their ver- < sion of tbe facts of tbe homicide in conversations outside of the court-roomj that be believed what they said, and that from their statements be bad formed and expressed an opinion. On examination by tbe court be said that, notwithstanding be bad formed and expressed an opinion, it would readily yield to evidence, and that be bad no bias or prejudice for or ag’ainst tbe defendant or tbe state. lie was then asked by tbe court this question: “Do you know any reason, after bearing tbe testimony and tbe law as given to you by tbe court, that would prevent you from rendering a fair and impartial verdict?” His answer was: “No, sir; nothing at all, except what I stated — tbat I bad beard rumor, and some of tbe state witnesses talk about tbe case.” lie then, answering another question, as to whether tbat would “prevent him from rendering a fair and impartial verdict after bearing tbe testimony and tbe law,” said it would not. On examination by counsel for defense be said be believed what the witness told him about tbe facts, and from tbat, and what be bad “beard others speak about it,” be bad formed bis oninion. He was then asked if tbat was a fixed opinion, which would require testimony to remove, and be answered: “Well, tbat was my opinion about it. Of course, I bad formed an opinion..; but, as I said, law and testimony would have effect on my deciding the case.” Asked then, “Would it require testimony to make you change tbat opinion ?” be answered, “I have tbat opinion.” Asked then, “Would it take testimony to remove tbat opinion ?” be answered, “I suppose so. I just formed tbe opinion from what I beard of it, and I suppose tbat was tbe way. I believe it, from what I beard of it, and I suppose it would. My opinion is not a fixed opinion, so far as giving in a verdict.” We dissent, with great diffidence, from tbe opinion of tbe very able judge who presided, tbat this person was a competent juror, not to be challenged for cause. We are sure be will concur with *657us that no person would think that juror impartial if it concerned his life or liberty, and this is no bad test. It is true, the ruling made can find support in certain loose expressions in some of the opinions of some courts; but we have been cited to no case, nor have we found any, where a juror was declared competent under facts like those here. Section 26 of our constitution guarantees a trial “by an impartial jury of the county where the offense was committed.” This guaranty to each and every citizen by the fundamental law is, of course, sacred ground — the holy of holies — not to be invaded by the tread of legislatures or courts. It was a very wise and enlightened provision, and far more important of enforcement than avoiding any inconveniences and difficulties arising out of the notoriety of particular cases. Nevertheless, the tendency of human nature to burst through fundamental restrictions when at all irksome in the special instance has caused the courts to verge on invasion of this and many other wholesome constitutional reservations. It is well to fix, if it can be done, a boundary. In the present state of the authorities it is not easy for a trial judge, in the rapid movement of business before him, with no crystallized record on his desk, to determine limits, with no time for painstaking deliberation. Our own legislature, in § 2355 of the code, has gone to the very extreme length of the lawmaking power. That section is as follows: “Any person, otherwise competent, who will make oath that he is impartial in the case, shall be competent as a juror in any criminal case, notwithstanding the fact that he has an impression or an opinion as to the guilt or innocence of the accused, if it appear to the satisfaction of the court that he has no bias of feeling or prejudice in the case, and no desire to reach any result in it, except that to which the evidence may conduct; but any juror shall be excluded, if the court be of opinion that he cannot try the case impartially, and the exclusion shall not be assignable for error.” This section is constitutional, but it manifestly not only does not hamper the court in determining for itself the question of the *658impartiality of the person tendered as a juror, but, on the contrary, throws the onus on the court, in the exercise of its enlightened discretion, to decide whether or not the person tendered can “try the case impartially.” It is also careful to provide that the exclusion of a juror “shall not be assignable for error,” thus emphasizing the idea of liberal interpretation in favor of the accused. Nor does the section necessarily imply that a man is competent who has an opinion. It simply uses the words “impression or opinion.” The collocation is significant, in view of the antecedent law as announced by the courts, many of which had gone nearly or quite to the length of this statute. But the statute leaves it to the trial court to exclude any juror it may think not impartial, whether from impression or opinion, without liability to question. It would nullify the constitutional provision, and seriously endanger the fairness of trials, to hold a juror who has an opinion competent merely because he says he could try the case impartially. He may say so and may think so, but it is for the court to say whether he in fact can, viewed in the light of the weakness of human nature. We are constrained to think that a man who' has heard the facts from the state witnesses, believes what they told him, and from that has formed and expressed an opinion, which he still retains, is not an impartial juror, in the meaning of the constitution, whatever may be his own idea of his power to try impartially. We hold this, and nothing more, and think it will not require much psychological investigation to sustain this conclusion.
Appellant exhausted his peremptory challenges, and is in position to complain.
Reversed and remanded.
Terral, J., does not concur.