At our recent Dallas term the judgment herein was affirmed. It is contended the opinion was in error holding the action of the trial court correct in sustaining the challenge to the juror Atkins. It is not proposed here to make a restatement of the facts in regard to this matter, but reference is made to the original opinion. This juror was thoroughly investigated on his void dire in regard to whether he had concsientious scruples against the infliction of the death penalty. He answered in the negative, and was accepted by both parties, as is shown by the statement in the bill of exceptions, and in the original opinion. This answer misled counsel for the State into accepting the juror. The question we have here sharply put is, where a cause for challenge exists, and the juror upon his voir dire denies the existence of that cause and misleads counsel into accepting him, whether or not subsequently ascertaining the fact that the cause of challenge does exist would be a reason to challenge said juror before the completion of the jury, for the record shows that there were less than twelve jurors accepted at the time the existence of the cause for challenge became known to the court and counsel. We repeat here what was said in Horbach's case,43 Tex. 242: "We know of no law or established practice under the law which sanctions the peremptory challenge of a juror by either party when thus placed on the jury, whether it is full or not. There may be discretion in the court for excluding or *Page 600 standing aside a juror after he is thus chosen for good cause shown at the time why the juror can not or ought not to serve on the jury." Baker's case, as said in the original opinion, followed the Horbach case, and uses this language: "This clearly indicates that each person is to be examined separately and subject to challenge either for cause or peremptorily separately; and these things are to be done before the person is impaneled; and that the challenge afterwards would not be allowed, except for some cause not discoverable on the examination in person and to be set out in the application for failing to make the challenge." These cases have been approved in Drake v. State, 5 Texas Crim. App., 649; Evans v. State, 6 Texas Crim. App., 517. See also authorities cited in the original opinion, as well as People v. Damon, 13 Wend., 351; People v. Wilson, 3 Parker's Crim. Rep., 202; State v. Diskin, 34 La. Ann., 919, 1 Am. St. Rep., 523, 524. We are not discussing here the question of peremptory challenges, but only challenges for cause, where the cause for challenge existed at the time of accepting the juror, but which was secreted or failed to be made known by the juror at the time, when questioned in regard to the matter.
In People v. Wilson, supra, we find this language: "After several of the jurors drawn had been challenged and set aside and one had been sworn, one Ezra Haight was called and was challenged for proper cause by the district attorney on the allegation that he was opposed to capital punishment and could nor therefore conscientiously convict anyone on a charge of murder. The juror on being sworn testified that he was opposed to the punishment of death, but said in answer to a question from the court that he should, if sworn as a juror on a trial for murder and the evidence of guilt was clear, find the accused guilty. The court thereupon decided that the challenge had not been sustained, and the juror was thereupon sworn and took his seat. After another juror had been sworn and several others had been set aside, Haight, who had been laboring under considerable trepidation, addressed the court and said that he had misunderstood the question propounded to him and given a wrong answer, and that he desired to correct himself, and say that he could not under any circumstances convict one upon a charge for murder. The district attorney thereupon moved that the juror be set aside, which was opposed by counsel for the prisoner, who said that in a case of so much importance they were bound to raise every objection which would benefit the accused. * * * It was correctly held in People v. Damon, 13 Wend., 351, that a juror who, after he is sworn in chief and has taken his seat, is admitted to be incompetent to serve, may, in the exercise of a sound discretion, be set aside by the court at any time before evidence is given, and that this may be done even in a capital case, and as well for cause existing before as after the juror was sworn. In that case, however, the juror had not been previously challenged, whereas in that now before us a challenge *Page 601 had been interposed and the trial has been had and the juror has been found by the court to be competent. So long as that finding stands the juror can not be discharged, and yet it would be a mere mockery of justice to suffer the trial to proceed under such circumstances and with such a juror." In the Damon case, two questions were propounded: "First, can a juror be challenged after he is sworn? Second, can a juror who has conscientious scruples against finding a verdict of guilty in a case punishable with death be allowed to serve as a juror on the trial of an indictment for an offense punishable with death, unless he belongs to a religious denomination, who as a denomination entertains such scruples? The regular practice is to challenge jurors as they come to the book to be sworn before they are sworn; but I apprehend this is a matter of practice and may be departed from in the discretion of the court. The object is to give the prisoner a fair trial, and if it be made to appear even after the juror is sworn that he is totally incompetent by reason of having prejudged the case, it is not then too late to set him aside and call another. It is indeed laid down in the old books that it can not be done. Hawkins says a juror can not be challenged after he was sworn, unless for some cause which happened after he was sworn (according to the greater number of authorities) and cites the year books." After discussing the cases, the court said: "But I apprehend no authority can be necessary to sustain the proposition that the court may and should in its discretion set aside all persons who are incompetent jurors at any time before the evidence is given." The head note of the opinion says: "A juror who after he is sworn in chief and has taken his seat is discovered incompetent to serve may, in the exercise of a sound discretion, be set aside by the court at any time before evidence is given, and this may be done even in a capital case and as well for cause existing before as after the juror was sworn."
In 9 Smedes Marshall's Reports (Miss.), page 115, it seems that the question here at issue was involved. The head note of the decision states the matter, as we understand the case, fairly: "A proposed juror having stated that he had formed and expressed no opinion in the case, was tendered to the prisoner as a juror and accepted, when he voluntarily stated to the court that he had conscientious scruples about finding any man guilty of murder, and could not conscientiously take the oath. The court thereupon discharged him without challenge either upon the part of the State or the accused. Held, that it was the duty of the court to see that an impartial jury was impaneled and that it was composed of men above all exceptions. Therefore when the proposed juror stated his objections it was right to respect them and procure another who was not restrained by such feelings from the performance of his duty."
In State v. Diskin, 34 La. Ann., the court held, "When a juror after examination on his voir dire has been accepted by the prisoner and *Page 602 sworn the court may yet discharge him upon discovering from the statement and further examination of the juror that he is opposed to capital punishment." Judge Fenner, delivering the opinion of the court, says: "After the jurors had been called to the book, had been duly examined by the district attorney on their voir dire, and had been tendered to the prisoner and accepted by him, and had been thereupon severally duly sworn, one of the jurors notified the court, through the deputy sheriff, that he had conscientious scruples against capital punishment, upon which point he had been questioned on his voir dire. Thereupon the judge, over the objections of the prisoner, propounded to each of said sworn jurors the usual question on that subject, and two of them answering they had such conscientious scruples, he (the judge) challenged them for cause and discharged them as incompetent to serve in such cause. To which ruling and action of the court the prisoner took a regular bill of exceptions. We are not disposed to favor objections of this character, the purpose of which is not to secure but prevent trial before a fair and competent juror, which is all that any prisoner should have a right to claim. It is unquestionably the general rule, and so recognized by this court, that the proper time for both the State and the prisoner to urge objections to a juror for cause is before the juror is sworn, and the right of further question or of challenge for cause is, as a general thing, waived and lost after the swearing in by the juror. State v. Isaac, 3 La. Ann., 359; State v. Dubar, 2 La. Ann., 732; State v. Kennedy, 8 Rob., 596. Had the judge of his own motion officiously interfered by further questioning the jurors as to their qualification after they were accepted and sworn, or had permitted State's counsel to do so, and thereupon exercised the right of challenge, we would, perhaps, have enforced the rule and have considered such a proceding as an irregularity vitiating the proceeding. But all general rules have their exception, and when as in this case a juror has been sworn, of his own volition informs the court that he is subject to a cause of incompetency, as to which he and the two other jurors who have been sworn with him had not been questioned, we think it would be a mockery of common sense to hold that the court would be bound to close its ears to the information and permit the trial to proceed before an incompetent jury who could not find an unqualified verdict in favor of the State under any circumstances, however clearly the law and the facts might sustain and require it. Under such circumstances arising before the impaneling of the jury is completed, we hold that the court was justified in the exercise of its discretion to remedy the negligence thus called to its attneitno, and to examine the jurors sworn upon the matter of incompetency suggested, and to excuse those found subject to challenge for that cause. In this we are sustained by respectable authorities which go even farther than we have done. People v. Damon, 13 Wend., 351; Todel v. Commonwealth, 11 Leigh, 714; United States v. Morris, 1 Curt. C.C., 23; 3 Whart. Crim. L., sec. 3130, citing *Page 603 following additional cases: 11 Harris, 12; 37 Miss. 369; 1 Edm. (N.Y.), Sel. Cas., 36." These authorities amply sustain the original opinion, and in our judgment lay down the correct rule.
We are relieved here of investigating the question as to how far the trial court may go in excusing jurors because of the existence of causes for challenge when the court exercises that authority of his own volition. In the case before us, the juror had answered showing he had no conscientious scruples in regard to inflicting the death penalty, thus misleading the court and counsel for both sides. This, perhaps, may have been less detrimental to defendant, but the State is entitled to a jury in a capital case not burdened with conscientious scruples in regard to inflicting the death penalty, for this is one of the modes of punishment for murder in the first degree. Where a juror has misled counsel in regard to a cause for challenge and is accepted as a juror, it would not be violative of the law, upon discovering that the cause did exist, the challenge may then be exercised, and the court would not be in error in sustaining that challenge at any time before the completion of the jury. However, we are not undertaking here to state the final time at which the matter may be investigated, or the challenge interposed. It is not necessary here to discuss that question. This, we take it, is necessary in order to guarantee a fair trial before an impartial jury, as well for the defendant as for the State. Suppose the juror had answered he had no bias or prejudice against defendant, or that he had not established in his mind a conclusion as to the guilt of defendant to such an extent that it would influence his verdict; and it was thereafter discovered he had bias or prejudice, or had formed a conclusion as to the guilt or innocence of defendant, certainly it would not preclude defendant the right to introduce his cause for challenge and rid himself of a juror who had prejudged the case, and whose bias or prejudice, was of sufficient magnitude to influence that verdict against him. Authorities are not wanting to show that where the juror has misled accused in regard to his prejudgment of the case, or his bias or prejudice against accused, that new trials have been awarded upon subsequently discovering those facts. A court of justice would be derelict in refusing a new trial under such circumstances. It would be in direct violation of the Bill of Rights which guarantees the accused an impartial jury, for under such circumstances it would not be contended for a moment that a juror whose mind was in the condition indicated would be an impartial juror. We have discussed this question only from the standpoint of this record. Peremptory challenges are not here involved, but we have the plain and simple proposition that the juror had answered he had no conscientious scruples against inflicting the death penalty, when as a matter of fact he did have. This is laid down by the statute as one of the grounds of challenge, and guarantees the State and defendant the right to challenge for this reason. Having been *Page 604 misled by the juror into accepting him, the State had the right, under the circumstances, to urge the cause for challenge in the manner and at the time it was exercised. After a careful review of the facts we are still of the opinion that the evidence does disclose a killing upon express malice aforethought. The Reporter will state the evidence bearing upon this issue. The motion for rehearing is overruled.
Overruled.
ON REHEARING. June 15, 1904.