(after stating the facts). We think the jurors, Wells and Henry, were disqualified, because of the state of their feelings toward the appellant, as shown by the answers given by them upon their examination by the court. Numerous cases have discussed the competency of jurors, and the.effect of these oases is that the entertainment of preconceived opinions'about the merits of a criminal case renders a juror prima facie incompetent. But, if it is shown that the opinion was founded on rumor, and is not of a nature to influence his verdict, this disqualification is removed. Sneed v. State,
The defendant exhausted all of- his challenges, and after he had dóne so the State was permitted, over his objection, to challenge three of the jurors who had,been previously selected. It has been held that the -court may, in its discretion, permit the State or the -defendant to exercise peremptory challenges after having accepted a juror; but it has also been held that an election by the State -to challenge a juror, after his acceptance by both parties, must be -exercised before the defendant has exhausted his challenges, and it can not thereafter be done. Williams v. State,
The action of the court in permitting the State to challenge the jurors, after appellant had exhausted his challenges, was error, calling for the reversal of the case.
It may be true .that appellant was guilty of either murder in the first degree, or that he was not guilty of any crime at -all. But the deceased was the only witness to the killing, and we can not know what part of his story was accepted by the jury, nor what parts were rejected. While the jury under the evidence might have found the appellant guilty of a higher degree -of homicide than -it did, he can not complain of their failure to do so. Roberts v. State,
For -the errors indicated, the judgment of the court below will be reversed, and the case remanded for a new trial.