The opinion of the court was delivered by
Scott, C. L.The defendant was convicted of manslaughter and has appealed. The first error alleged is that the court erred in denying the challenge of the defendant to juror Fuller for cause, on the ground that he was not a householder. It is contended by the state that the act, Laws 1895, p. 139 (Bal. Code, §§4740-4748), relating to the qualification of jurors, does not affect § 339, 2 Hill’s Code (Bal. Code, § 4978). It is conceded that Fuller was not a householder, but he was summoned on an open venire to complete the panel, the number who had appeared on the regular panel being exhausted. In State v. Cushing, 17 Wash. 544 (50 Pac. 512), it was held that § 339 and the act aforesaid might both stand, they not being conflicting. The case of Redford v. Spokane St. Ry. Co., 15 Wash. 419 *60(46 Pac. 650), has been called to our attention as holding that jurors called upon an open venire need not be householders, but the contention there was that the act of 1895 was unconstitutional, on the ground that limiting the persons who could serve as jurors to householders made it class legislation. It was urged by counsel as an additional reason in support of that contention, that there was no such qualification required when jurors were summoned on an open venire, and the court mentioned it as such, but there was no intention to decide that such jurors need not be householders, nor does the opinion so hold. In fact, it was stated that the act was uniform in its operation. Prior to the act of 1895, a juror summoned on an open venire under § 339 had to have the same qualifications as if h,e had been jireviously selected on the original list. We are of the opinion that the act of 1895, in prescribing the qualifications of a householder, applies to all jurors, however summoned. Section 339 provides that persons summoned upon an open venire shall be qualified persons, and the law then in force prescribing the qualifications was amended by this act, and § 339 must be read in harmony with it as amended; consequently, it was error to deny the challenge.
It is next contended that the court erred in denying the defendant’s challenge to another juror for actual bias, - upon the ground that he had formed and expressed an opinion concerning the guilt or innocence of the defendant which would require evidence to remove. This question has been before this court a number of times, and the holding has been uniform that such an opinion is a ground of challenge. The only question to be determined is, whether this falls within it. The witness testified squarely that he had an opinion formed by talking with persons about the alleged crime, and that it would take evidence to remove it. He said he did not know that it would take very much, but it *61would require some. The only thing to weaken this was the question put by the court, which is as follows:
“ Q. — Is that opinion such a fixed opinion in your mind as would prevent you from giving the defendant a fair and impartial trial?
“ A. — bio, I do not think it is.”
And here the examination ended. The witness did not testify that he could disregard the opinion he had formed, and could enter upon the trial free from its influence, as if he had not formed any, or, in fact, make it appear by his other testimony that he really had no such fixed opinion, but had directly testified that he had one and that it would require evidence to remove it. This apparently was not drawn from him inadvertently, but was an honest and fair expression of the condition of his mind. As to the question put by the court, he may not have understood very clearly what a fair and impartial trial was. It was for the court to find as to that upon the evidence, and there was no evidence to base it on. The challenge should have been sustained.
It is further alleged that the court erred in overruling an objection to certain testimony given by one Hardison, that he had never seen the deceased have the pistol introduced in evidence, and alleged to have been held by him at the time he was killed. This was a disputed fact, and it was competent to prove that the deceased had never been seen to have such, or any pistol, by persons who would be likely to know if he did have one. This witness was an employee of, and had been living with, the deceased. The evidence, although negative, was competent for what it was worth.
It is also alleged that the court erred in sustaining an objection to a question asked a witness as to what the deceased had said to him with reference to his intention of going to the premises in controversy and entering at *62all hazard. If we understand the record, this matter had been brought home to the Lattins, and the question was a proper one. It is contended by the prosecution that error, if any, was subsequently cured on further examination of the witness. As the case must be reversed for reasons above stated, it is unnecessary to examine it further. It is further contended that the court erred with reference to some of the instructions given relating to self-defense. It is practically conceded by the prosecution that the particular instructions were faulty, but it is claimed that they were cured bj others given. It isunnecessary to set forth the instructions, as the same questions are not likely to arise upon a retrial, and this also is true with reference to a great many other alleged errors, and it is unnecessary to pass upon them for that reason. Some of them have no foundation in the record and some are immaterial.
Reversed and remanded.
Anders, Dunbar and Reavis, JJ., concur.