dissenting. I respectfully dissent from my colleagues in the foregoing opinion.
It appears that the juror Autrey was related within the prohibited degrees to two of the depositors of the Athens Trust & Banking Company. The accused was placed upon trial upon an indictment charging a violation of section 204 of the Penal Code, as president of the bank, and it is admitted that two relatives of the juror were depositors, and, therefore, necessarily parties at interest in the affairs of the bank, and- that this was not known to the accused or his counsel. It was testified by the witness Barnett that the husband of one of the depositors was present at a joint meeting of the stockholders and depositors of the bank. The depositors and stockholders, through a committee, employed certain counsel to assist in, the prosecution of the accused, and said counsel were paid by the court through its receivers, out of the funds held by the court for distribution. One of the attorneys so employed testified: “My firm were not the attorneys for the receivers. We were employed by the depositors’ committee and the stockholders’ committee of the bank. I never had anything to do with those preliminary matters when the warrants were first gotten out against Griffin. I never came into the case until after the indictment was found. We hope our fee will be paid out of the receivership fees. We haven’t got anything to date.” It is clear from the above that the firm engaged to assist the solicitor-general in the prosecution of the accused was employed jointly by the stockholders and depositors of ,the bank, and that the money paid to counsel was paid out of the funds of the bank, in which the depositors were vitally interested.
*408A juror related to a party at interest within the prohibited degree in the trial of an-y cause is not competent to pass upon the issue involved. It is not a question as to whether or not the juror acted improperly in the rendition of the verdict, but whether or not it is likely that his relationship to a party at interest in all human probability might affect his finding. “There is no rule by which the disqualification of a juror is to be determined other than the existence of such interest on the part of the juror as probably will affect his finding, thereby contributing to the advantage of one of the parties to the detriment of the other.” Numerous instances of interest on the part of jurors, which have been the subject of adjudication, may be cited. Temples v. Central of Georgia Railway Co., 15 Ga. App. 115, 123 (82 S. E. 777). In Anderson v. State, 63 Ga. 675, it was held that the bail was -incompetent as a juror to try the accused, for the reason that the accused might escape during the trial of the ease, thereby rendering the surety liable for the bail bond. In this connection Justice Bleckley said: “Suppose the prisoner had concluded to leave the court and the country after the jury had retired, and this juror, his bail, had been of the panel charged with his case, and by any chance he had heard that his principal was gone, there would have been an improper motive to return a verdict of not guilty.” In Lyens v. State, 133 Ga. 588 (66 S. E. 792), the court held that when one contributes to a fund to be used in employing an attorney to aid the solicitor-general in a prosecution, and the attorney does render such aid, the person so contributing to the payment of such counsel is to be considered a voluntary prosecutor, and the juror who is related within the “fourth degree” (?) to such a person is not competent to sit upon the trial of the case. On the hearing of the case last cited the incompetent juror testified that he did not know of the disqualification, and the court, through Holden, J., said: “Was Fields disqualified as a juror by reason of his relationship to the Stricklands? We think he was. The Stricklands may not have been attorneys, and for that reason could not have appeared and assisted the solicitor-general in asking questions of the witnesses and in addressing the jury urging them to convict the defendants. They employed counsel to render this aid to the prosecution . . . The Stricklands themselves did not render any service to the State, but their zeal and interest were enlisted on *409the side of the prosecution to the extent of parting with their money to obtain the services of another to appear in the case as their representative, who could, perhaps, render services towards securing the conviction of the defendants of more value than they themselves could.”
The right of jury trial can not be too carefully guarded, and a proper administration of public justice requires that all jurors should be free from even the suspicion of interest, bias, or prejudice. It matters not that the juror so affected did not know of the disqualification. “On the trial of an indictment for mutilating and destroying the boobs of a corporation with intent to defraud and injure it, persons related to its stockholders within the prohibited degree are not competent to serve as jurors; and in determining whether or not a new trial should be granted to the accused because of relationship between jurors and stockholders, the fact that the former at the time of the trial were ignorant of any relationship between themselves and some of the stockholders is immaterial.” McElhannon v. State, 99 Ga. 672 (26 S. E. 501). In the case of Bank of the University v. Tuck, 107 Ga. 211 (33 S. E. 70), the court said: “Persons related within the prohibited degree to stockholders of a bank, or to others who are pecuniarily interested in the value of its stock, are incompetent to serve as jurors on the trial of an action brought by the bank; and where persons so related, without the knowledge or consent of the defendant, or his counsel, actually serve as jurors on such a trial, another hearing should be had notwithstanding ignorance on the part of the disqualified jurors of the fact that their kinsmen were, stockholders, or pecuniarily interested in the stock of the'bank.” Can there be any distinction between the disqualification of a juror related to a stockholder of a bank and that of a juror related to a depositor of a bank ? The assets of this bank were in charge of the court’s officers, and they belonged to the creditors of the bank, its stockholders and depositors. The receivers represented all the parties at interest, and the fee paid to counsel for the prosecution was paid out of the funds held by the court through its receivers, representing all the parties at interest. Surely there can be no difference in principle between the last two cases cited and the case at bar. In Beall v. Clark, 71 Ga. 818, it was held that a new trial should be granted because one of the jurors was a *410half-brother to a witness, who had been promised a position as overseer in the event his testimony resulted in the recovery of certain plantations, although the witness swore that the juror, his half-brother, had no interest in the matter, Justice Hall said in that case: “Trial by jury can not be too carefully guarded, not only to protect it from unfairness, but from any uncertainty on that score. Jurors should be above suspicion. Omni exceptione majores.” And this court, in the ease of Temples v. Central of Georgia Railway Co., supra, after a most elaborate review of the authorities upon this question, quoted with approval the case of Beall v. Clark, supra, and through Russell, C. J., said: “Ever since the organization of this court it has been our endeavor to adhere rigidly to the principle so well stated by Justice Hall.”
It will be observed from a persual of McElhannon’s case that the corporation was not the prosecutor, and in the case at bar the corporation was not the prosecutor, but the rights of the depositors were at issue, and they as parties at interest were voluntary prosecutors. In Temples v. Central of Georgia Ry. Co., supra, Russell, C. J., citing Gormley v. Laramore, 40 Ga. 253, said: “Both interest and bias are disqualification propter affectum; and hence the subject of disqualification and its probable effect can be inquired into after verdict.” If the court can take cognizance of the existence of more than one motive, “and there is any uncertainty as to which interest, if any, may affect the juror, there is no less reason for his rejection than if his particular bias were clearly shown; the purpose of the law being to provide for a trial by jurors altogether impartial.” Temples v. Central of Ga. Ry. Co., supra. “A big part of the battle is the selection of the jury, and an impartial juror is the corner-stone of the fairness of trial by jury.” Melson v. Dickson, 63 Ga. 682, 686 (36 Am. R. 128). This principle is recognized in the case of Moore v. Farmers’ Mutual Ins. Asso., 107 Ga. 199 (33 S. E. 65).
If the accused was guilty as charged in the indictment, he certainly injured the depositors to whom this juror was related within the prohibited degree, and it seems to be well settled that the relationship which disqualifies a juror need not be a relationship to an actual party to the case, provided it be to one interested in the result of the case. Hnder the law the accused was deprived of a substantial right, a right which the law guarantees to him, and on account of the ineompetency of this juror the trial was nugatory.