| Ark. | Jun 1, 1914
(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, 47 Ark. 180" date_filed="1886-05-15" court="Ark." case_name="Sneed v. State">47 Ark. 180; Decker v. State, 85 Ark. 64" date_filed="1908-01-06" court="Ark." case_name="Decker v. State">85 Ark. 64. But while it is true that an opinion based on mere rumor does not disqualify a juror, provided the juror can say upon his oath that he can and will disregard such opinion, and will try the case solely upon the law and evidence, it can not be said, however, that an opinion based upon a rumor can not disqualify. The juror is supposed to stand disinterested between the parties to the litigation, and to be able to make up his verdict solely on the law and evidence; and if he. can not do this, he is not a competent juror, and it is immaterial what the cause may be which prevents him from doing so. _ One might be so impressed with a rumor as to form ah opinion which he would be unable to disregard, and which would enter into his deliberations and conclusions upon the case, and in such cases the juror is disqualified, and we conclude, therefore, that these jurors were disqualified, and the court erred in holding that they were not.
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, 63 Ark. 527" date_filed="1897-03-06" court="Ark." case_name="Williams v. State">63 Ark. 527.
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, 96 Ark. 58" date_filed="1910-10-03" court="Ark." case_name="Roberts v. State">96 Ark. 58.
For -the errors indicated, the judgment of the court below will be reversed, and the case remanded for a new trial.