Concurring in the opinion of Justice Barnard, it is not necessary for me to give my views upon the other question to which Judge Ingraham refers. I only wish to say that the opinion of Justice Strong, in LoJman’s case, in the Supreme Court, cited by Judge Ingraham on the point discussed by Judge Barnard, cannot be regarded as authority. That case went to the Court of Appeals, (1 Comst. 380,) and Judge Gardiner, speaking of the question put to the juror after he had declared his belief that the prisoner’s general character was bad, as to whether he could render a verdict on the evidence, says: “ The issue to be tried was whether the juror stood indifferent between the parties. This of course depended upon his state of mind. To ascertain this was the object of the examination of both parties. Upon an issue of this kind, from the nature of the fact to be established, the opinion of the juror, derived from his own consciousness, was relevant, competent and primary evidence. If the juror answered in the affirmative, it would have been a declaration that he posessed such ability. That would be but an opinion, but one founded on his own consciousness, and so far entitled to the consideration of the triors, although by no means conclusive upon them. If he had responded in the negative, the answer would, if believed, have been decisive against his competency. For although a man may think himself impartial when he is not, he cannot be a competent *350juror if conscious of an inability to render a verdict without being influenced by previous impressions.”
Here the district attorney chose to, let the matter stand upon the juror’s evidence that he had “ formed an opinion that the prisoner’s character was bad; that he was biased;” without any inquiry as to whether he could disregard that feeling and render a verdict solely upon the testimony. And that being so, Ithink, upon the evidence as it closed, the juror’s answers, in the language of Judge Gardiner, were “decisive against his competency;” and that the prisoner was entitled to have such an instruction given to the triors.
It would be absurd to say that a man is entitled to have an “ indifferent ” jury, if it may be constituted of persons who have formed an opinion against his general character, and are already “biased” against him before the trial commences..
The conviction should be reversed.