The only question which we shall decide in this case is, whether the court could set aside a juror because he had formed and expressed an opinion in the case, although he was not challenged by either party. The juror was examined, and stated that he had an opinion in the case, but notwithstanding this, he was accepted by the prisoner, and before he had been accepted or challenged by the people, the court ordered him to stand aside, and refused to allow him to be sworn on the jury, to which the prisoner excepted. In this we think the court erred. It does not appear but that the juror possessed the legal qualifications required by the statute, but that he was subject to challenge for favor. If the parties chose to have their cause tried by a prejudiced juror, it was not for the court to refuse them the right. I once heard a trial for murder, where a majority of the jury stated that they had formed and expressed the opinion that the prisoner was guilty, and still he accepted and was tried by them, and was acquitted upon a technical point, which his counsel evidently supposed those jurors had the capacity fully to comprehend, and the firmness and integrity to give him the benefit of. So in this case, the prisoner had a right to be tried by this juror, unless the people should challenge him. Whether he would have been challenged by the people, had he not been set aside by the court, we cannot know. It is enough that he might have been accepted by them, to give the prisoner the benefit of the exception. That chance, at least, was his right, and because he was deprived of it, he must have a new trial.
The judgment must be reversed and the cause remanded.
Judgment reversed.