Thompson was tried at the G-eneral Sessions, and found guilty of burglary : he brings a writ of error to reverse the judgment. On the thirteenth of April, he was brought into court and' pleaded guilty, and was thereupon sentenced to five years’ imprisonment; but before the sentence was entered on the records, he was allowed to withdraw his confession and to plead not guilty; his trial was appointed for the following day. Two jurors were challenged for favor, as having formed and expressed an opinion. The court ruled that any impression of the guilt of the prisoner, which they had formed from the proceedings in court, on the thirteenth of April, was not a proper subject of inquiry; to this ruling the defendant excepted. In the language of Chitty (1 Chit. Cr. L., 544), “the question to be tried” (in such case) “is, whe*472ther the juryman is altogether indifferent, as he stands unsworn.” The time thus fixed is the period at which the trial of his indifferency takes place before the triors; the issue submitted to the triors is in the present tense : “is he indifferent,” and the finding is to be in the present tense, “ that he is or is not indifferent.” No exception is stated to this rule, and none can be justly engrafted on it. The accused is entitled to a trial by men who do not yet believe him guilty, or his trial is a sham. The confessions made by the prisoner, any time before the day when he was brought into court, could have produced no stronger impression of his guilt, than his plea of guilty at that time, yet an impression from such a source would have excluded the juror beyond doubt; so that the acts or confessions of the accused do not form an exception to the rule. Suppose each juror had actually come to the conclusion that the prisoner, being of sound mind, could not have pleaded guilty without being guilty, and that he was in fact guilty, can it be said (and that is the only question here) that the triors would not have had cause to find them not indifferent? Or the question may be put in a still stronger form : if the executive were satisfied that a man had been convicted by jurors who had thus prejudged the case, would he not feel bound to pardon the prisoner? The prosecution would not be allowed to prove the prisoner’s confession of guilt as evidence on the trial in chief; yet by admitting jurors, on whom it had produced a belief of the guilt of the prisoner, it has its full effect as evidence, without the possibility of the prisoner repelling it.
The judgment should be reversed, and a new trial be had at the General Sessions.
Judgment reversed and new trial awarded.