The opinion of the court was delivered, January 5th 1874, by
Asnew, J. —We think there was error in the refusal of the court to sustain a number of the prisoner’s challenges for cause. How far an opinion formed by a juror upon the guilt or innocence of the prisoner is sufficient to sustain a challenge is not well settled. A half a century ago, when jurors were easily obtained, who had heard nothing of the cause, or so little as to have no fixed opinions upon-the guilt of the prisoners, the rule was held strictly to exclude all who had in any manner formed and expressed an opinion.
At the present day, when newspapers, railroads and telegraphs have made intercommunication easy, and where reporters are alive to every occurrence, and the daily press eager to serve up the details of crime, the difficulty of obtaining jurors free from these wide-spread influences, has made courts less ready to listen to *461this cause of challenge. In the contrariety of opinions prevailing, it is needless to look abroad for precedents, but rather to be guided by the reasons lying at the bottom of the right of challenge. The great purpose of this right is to secure a fair and impartial trial. Chief Justice Marshall said, in the trial of Aaron, Burr for treason, that “ the court has considered those who have deliberately formed and delivered an opinion on the guilt of the prisoner, as not being in a frame of mind to weigh the testimony, and, therefore, as being disqualified to sit as jurors in the case:” 1 Burr’s Trial 367. Chief Justice Taney laid down the following test, says Mr. Wharton in his Crim. Law, § 2981: “If the juror has formed an opinion .that the prisoners are guilty, and entertains that opinion now, without waiting to hear the testimony, then he is incompetent. But if from reading newspapers or hearing reports, he has impressions on his mind unfavorable to the prisoners, but has no opinion or prejudice which will prevent him' from doing impartial justice when he hears the testimony, then he is competent.” It is evident that in the view of these eminent jurists, the opinion which should exclude a juror must be one of a fixed and determined character, one that has been deliberately formed, and is still entertained, and, therefore, in an undue measure shuts out a different belief. This is a prejudgment of the case, and constitutes a bias too strong to make the juror a fair and impartial judge. “ But pre-judgment and giving an opinion on the statement of certain facts are very different things.” “ The first (it was said in McCausland v. McCausland, 1 Yeates 378) implies a strong disposition to favoi one side or the other — a determination to find in one way^let the ■evidence be what it may. The last involves the truth of certain facts and propositions in the sentiments delivered, and impressions thus made may be effaced by the production of evidence.”
Justice Rogers said of' this distinction that its good sense is its best recommendation: Commonwealth v. Flanagan, 7 W. & S. 420. His approval lends strength to it, and we may by use of it, find the middle ground upon which this ease can be determined. Whenever,-therefore, the opinion of the juror has been formed upon the evidence given in the trial at a former time, or has been so deliberately entertained that it has become a fixed belief of the prisoner’s guilt, it would be wrong to receive him. In such a case the bias must be too strong to be easily shaken off, and the prisoner ought not to be subjected to the chance of conviction it necessarily begets.
But where the opinions or impressions of the juror are founded on rumor or reports, or even newspaper statements, which the juror feels conscious he can dismiss; where he has no fixed belief or prejudice, and is able to say he can fairly try the prisoner on the evidence, freed from the influence of such opinions or impres*462sions, he ought to not to be excluded. If exclusion should follow from such unsettled convictions, it would often be difficult to obtain a jury. These principles would have excluded all those jurors who had formed opinions still resting on their minds from hearing or reading the testimony given on the former trial; hut it is sufficient for the purpose of reversing the sentence to say, that the tenth error is sustained. These principles, it is hoped, will be a guide for the next trial.
On the 11th assignment of error to the rejection of Henry Staup as a witness, we'may say that Shay v. The Commonwealth, 12 Casey 305, is a case in point. Defendants jointly indicted for murder, though severing in their defence cannot testify for each other. The love of life is too strong to be placed in the balance against truth, and the result might often be, that both defendants would be acquitted when both were guilty.
It is conceded that if the testimony of the Commonwealth be accepted as true, all the ingredients to constitute murder in the first degree were proved to exist, and the 14th assignment of error must therefore fail. But, as in the argument, we listened to a discussion of the facts stated as though we were jurors, sitting to decide upon the guilt or innocence of the prisoner, it is proper to repeat what we have heretofore decided, to wit: That the Act of' 15th February 1870, 1 Brightly’s Dig. 610, does not make it our duty to review the facts on the question of the guilt or innocence of the prisoner, but only for the purpose of determining whether the ingredients necessary to constitute murder in the first degree, shall have been proved to exist. This has been so ably and clearly stated by Thompson, C. J., in the recent case of Grant v. Commonwealth, from Chester county, 21 P. F. Smith 495, it needs no further development.
As this case must go hack for a new trial, the refusal to recall Andrew Boyd becomes unimportant. At most, it was a matter of discretion in the then attitude of the case. The 12th assignment needs no notice. We discover no error in it.
The sentence of the Court of Oyer and Terminer is reversed, and the record is ordered to he remanded to the court below, together with a copy of this opinion, setting forth the causes of reversal, for further proceeding in the said court, and a venire faeias de novo is awarded.