The defendant was indicted for the offence of murder, and, on his trial therefor, was found guilty. A motion was made by the defendant for a new trial, on the grounds therein stated, which was overruled by the court, and the defendant excepted. The only ground of error contained in the motion seriously insisted on here was, that the defendant had not been tried by an impartial jury; that one of the jurors .who tried him, to-wit: James Davis, was not a competent juror, having prejudged the case against him, which fact was unknown to the defendant or his counsel uritil after the trial. It apjiears from the bill'of exceptions, that this ground was added to the ' original motion for a new trial, by way of an amendment thereto, by an order of the court. It appears from the affidavit of Duke, con
1. By the constitution of the state, the defendant was entitled to be tried by an impartial jury ; but as it was made to appear to the court, without any explanation by the juror, or otherwise, when the motion for a new trial was overruled, the defendant was tried by a jury, one of whom had declared “ that he had looked into the case, and that he, the defendant, would be hung, without any doubt at all.” This showing, as made without any explanation, entitled the defendant to a new trial, as was held by this court in Ray vs. The State, 15th Ga. Rep., 223, and in Brinkley vs. The State, 58th Ib., 296. The rule in such cases is, that when a juror is shown by evidence to have been prima facie incompetent to have tried the defendant, as an impartial juror, the court will allow the juror to be heard in explanation of the charge made against him, the court acting as trior, to determine whether the juror was competent, as well after as before trial. In the case now before us, the court overruled the defendant’s motion for a new trial, as appears from the bill of exceptions, without any explanation from the juror as to his competency, or otherwise, which, in our judgment, was error.
2. It is true that there is an explanatory affidavit of Davis, the juror, in the record sent up by the clerk, but it is not in the bill of exceptions, and was not, and could not have been considered and passed upon by the court in overruling the defendant’s motion for a new trial, for the reason that