The defendant was convicted of murder in the second degree and his punishment assessed at five years’ confinement in the penitentiary. The most serious objection urged against this conviction, and the only one which we deem it necessary to .consider, is the action of the court in setting aside a juror upon the challenge of the district attorney for cause, when, as the defendant claims, the juror was a qualified juror, and not subject to a challenge for cause.
The juror, upon being interrogated as to the state of his mind with regard to the case, stated that he had not formed or expressed any opinion in the cause which would influence him in finding a verdict,—that he heard all the testimony produced upon the preliminary examination of the case before a magistrate, but had formed no opinion that would influence him in trying the case. Having thus answered he was challenged for cause by the district attorney, and the court sustained the challenge and set aside the juror, over the objections of the defendant; and the defendant thereupon excepted and took his bill of exceptions to this action of the court.
The question thus raised is one whiclq so far as wo are advised, has not been adjudicated in this court, or in our Supreme Court. We have found no reported case in this State where the question has been presented. The statute upon the subject appears to he plain enough. It provides that “ a challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. (Code Crim. *369Proc. art. 636.) One cause for challenge is “that from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as will influence him in his action in finding a verdict.” (Code Crim. Proc. art. 636, sub. 13.)
It does not appear that the juror in this case had formed any conclusion whatever as to the guilt or innocence of the defendant. He answered that he had formed no opinion that would influence him in the case. True, he may have formed an opinion which in his judgment would not influence his verdict; but his answer does not show that he had formed any opinion whatever as to the guilt or innocence of the defendant. The mere fact that he had heard the evidence in the case on a prior trial did not of itself disqualify him as a juror. (Parchman v. State, 2 Texas Ct. App. 228.) There must be established in his mind a conclusion as to the guilt or innocence of the accused, and this conclusion must be such as will influence him in his verdict. It does not appear that such was the condition of this juror’s mind, and we are clearly of the opinion that he was qualified to serve as a juror in the case.
A question similar to the one now under discussion came before this court in the case of Hill v. State, 10 Texas Ct. App. 618. In that case the judge, without the consent of the defendant, excused one of the regular venire summoned to try the case, because of sickness in his family. It was contended by the State in that case, as it is in this, that, even if the action of the court was erroneous, it had wrought no injury to the defendant, as he had not exhausted his peremptory challenges. In discussing the subject, this court said: “That the defendant had not exhausted his peremptory challenges cannot in the least degree affect the question. He had a right to that juror,— a right given to him by the law of the land. .He may have had fifty peremptory challenges remaining, *370but we are at a loss to understand in what manner he could have.exercised these challenges so as to restore the excused juror. Challenges are for the purpose of ridding the jury of obnoxious jurors, but can never replace one who has been wrongfully or rightfully excused.”
It has been settled by this court that the rulings of the court in organizing a jury are not revisable unless they infringe the law or prejudice the accused. (Ray v. State, 4 Texas Ct. App. 450; Gardenhire v. State, 6 Texas Ct. App. 147.) In this case we think the action of the court in setting aside the juror upon the challenge of the district attorney for cause was an infringement upon the-law, though it may not have operated to the prejudice of the defendant; and for this error the judgment is reversed and the cause remanded:
Reversed and remanded.