Defendant Kamischke was charged with uttering and publishing a forged instrument. CL 1948, § 750.249 (Stat Ann 1962 Rev §28.446). Defendant was arrested at a bar with Edward Maliszewsld who was charged with a separate offense of uttering and publishing a forged instrument. Each of the men was charged with passing a different one of a group of the same type of checks, stolen from the same place and with the identical payees and forged signatures. The offenses charged occurred at different times and places.
At defendant Kamischke’s trial, the jury included sis members of the jury which had heard the trial of Maliszewski on the previous day. This defendant was brought into the trial of Maliszewski both by name and reference. 1 The jury found Maliszewski guilty. The evidence in the Maliszewski trial implied a scheme involving Kamischke.
The trial judge and the prosecuting attorney knew that some of the jurors had heard the prеvious day’s trial. The trial court, in his voir dire of the proposed jury, after a juror had stated, “we sat yesterday,” replied in part, “That was a completely different case yesterday. That has nothing to do with *239 this matter.” The voir dire record does not indicate any answеrs by the proposed jurors touching upon their qualifications or impartiality to sit as such jurors, or any instructions to such jurors by the trial court of any discernible method of replying to the voir dire questions. GCK, 1963, 511.4(3), (4), (5), (7), (8). On two further occasions, such jurors volunteered the information that they had served on the previous day’s trial; defense counsel did not make any challenges to such jurors, although he questioned them as to prejudice or bias against Mr. Kamischke due to hearing his name mentioned the day before in a similar case. The jurors who replied disclosed no bias.
From his conviction, this defendant appeаls, alleging among other claimed errors that his Federal and State constitutional rights to a trial by an impartial jury were viоlated.
Did the statements of these proposed jurors indicate their manifest concern with being unable to ignore the incriminating evidence of the previous day’s trial and thereby be biased against the defendant, or have a positive opinion of the facts f
In
People
v.
Troy
(1893),
“We think, however, that the court erred in permitting the jurors who sаt in the Flanders case to sit in the present. The facts are nearly identical, and must necessarily have all been called forth in the Flanders trial. The jury in that case must have considered them, and reached some opinion as to thе merits of the controversy in the present case. The respondent was entitled to a fair and impartial trial by an impartial jury, Avho had no preconceived opinions of his guilt or innocence. We are aAvare that some English and American authorities hold that jurors who have sat in one case are not disqualified from sitting in a case against anоther joint respondent, who has taken a separate trial, and involving the same set of facts. We are not inclinеd to follow that doctrine. Where the issue is the same in both cases, it is but fair to the respondent that he have anothеr panel of jurors to try his cause.
“For this reason the verdict must be set aside and a new trial ordered.”
In
People
v.
DeHaven
(1948),
“The right to be tried by an impartial jury is a constitutional guaranty. We find ourselves in harmony with the mеaning of that term as quoted from 20 Words and Phrases (Perm ed), p 191, in Durham v. State, 182 Tenn 577 (188 SW2d 555 ,160 ALR 746 ):
“ ‘ “The ‘impartial jury’ guaranteed by constitutional provisions is onе which is of impartial frame of mind at the beginning of trial, is influenced only *241 by legal and competent evidence produced during trial, and bases its verdict upon evidence connecting-defendant with the commission of the crime charged, and further, ‘consists of twelve impartial men’ ” ’ ”.
It is noted that the prosecuting attorney, in his brief filed herein, did not give any legal citations of authority to sustain the legality of the conviction of the defendant herein.
"While the paucity of direct authority on the question of judicial duty to protect the constitutional right of an accused to a trial by an impartial jury is notеd, it is also recognized that in many instances the failure of defense counsel to do so loses such right for his client. It may bе asked, how can a defense counsel challenge a juror who makes no perceivable answer to voir dire оr how can an appellate court make a determination that the defendant’s constitutional guaranty of а trial by an impartial jury was protected where there is no record of jury answers to the voir dire. It should be apparent in thе trial record that the “impartial jury” guaranteed by our Constitution is a jury with an impartial frame of mind at the beginning of the trial and one that bases its verdict only on legal and competent evidence produced, during the trial, connecting the defendant with the commission of the crimе charged. The contrary is portended.
All trial courts are under some obligations to guard and enforce the pеrsonal rights secured by our State and Federal Constitutions. Constitution 1963, art 1, § 20 and Constitution 1908, art 2, § 19, accord the right to one acсused of crime to a speedy and public trial by an impartial jury. The ineptitude of those charged with the responsibility of providing one accused of crime to a public trial by an impartial jury should not be charged to the *242 accused. There was a violation of the defendant’s constitutional right to a trial by an impartial jury.
Judgment is reversed and the cause remanded for a new trial.
Notes
Six witnesses were common to both trials.