delivered tbe opinion of tbe Court, Rhodes, C. J., Wallaoe J., and Crockett J., concurring:
Tbe defendant was convicted of tbe crime of murder in tbe first degree. At tbe trial, from tbe regular panel, ten jurors were selected and sworn — tbe regular panel being then exhausted. By tbis time tbe defendant bad exhausted all bis peremptory challenges. A special venire for six additional jurors having been issued, was served by tbe Sheriff, and tbe jurors summoned appeared in Court. Tbe defendant then interposed a challenge to tbe panel returned on tbe special venire, on tbe ground that tbe Sheriff bad formed and expressed an unqualified opinion that tbe defendant was guilty. Tbe challenge was denied,' and on tbe trial of it tbe Sheriff was sworn, and from bis evidence it appears plainly enough that be bad formed and expressed such an opinion as would have disqualified him from serving as a juror in tbe case. Section 337, of tbe Criminal Practice Act, provides that a challenge may be made to tbe panel on account of any bias of tbe officer summoning them, which would be good ground of challenge to a juror; and we think tbe ruling of tbe Court in denying tbe challenge clearly erroneous.
We find nothing in tbe Act Concerning Jurors, passed April 27, 1863, (Stats. 1863, p. 630), inconsistent with tbe provisions of tbe Criminal Practice Act. It expressly enacts that either party may have tbe number of tbe peremptory challenges, and tbe challenges for cause now provided by law; and it makes no provisions for tbe manner in which tbe challenges shall be interposed. Tbis is left for tbe Criminal Practice Act, and we think clearly implies that its provisions upon tbe subject are still to continue in force.
We think tbe word “panel” includes within its definition tbe jurors returned upon a special venire to fill out tbe deficiency after tbe regular panel has been exhausted. Section 337 of tbe Criminal Practice Act was intended to -apply to just such a case as that presented in tbis record.
*593The indictment, in tbe first count, charges tbe homicide to have been committed by one Paul Tibeaux, and that the defendant aided and abetted. The second count charged that the defendant and others did kill and murder Elkanah Said. The Court instructed the jury that they must acquit the defendant unless they find that the deceased was killed by Paul Tibeaux, while the defendant aided and abetted the killing. The evidence was that the fatal shot was fired by a Frenchman by the name of Paul, and there was no evidence to show that Paul Tibeaux had anything to do with the homicide. The failure to prove that Paul was the same person known as Paul Tibeaux was probably a mere oversight, but the total absence of proof upon that point is fatal to the verdict. It would be contrary to the instruction of the Court, and, therefore, erroneous.
Judgment reversed and new trial ordered.