dissenting.
The first assignment of error raises a question as to the qualification of one of the jurors.
In Allison v. Com’th, 99 Pa. 17. one of the rules deducible from the authorities was stated as follows : “ Where the juror entertains a fixed and deliberate opinion, no matter how formed, of the prisoner’s guilt he is incompetent; and his belief that he can try the prisoner impartially will not remove the disqualification.” Does the examination of the juror Nevin show that he had a fixed or deliberate opinion within the meaning of this rule ? If this question be considered with reference solely to his answers as to the nature, character and strength of his opinion, it is free from difficulty. Thus viewed, it is the ordinary case of a juror admitting that he has formed and expressed an opinion as to the defendant’s guilt, without stating how, or upon what evidence, he was led to form it, or that it is a fixed opinion, but asserting that he can and will try the case and render a verdict in accordance with the evidence adduced on the trial, uninfluenced by any former opinion that he may have had. In none of the numerous cases decided by the Supreme Court since Staup v. Com., 74 Pa. 458, has it been held to be error to overrule the challenge under the circumstances just stated. The law no longer presumes that a man, who has formed an opinion from what he has heard or read concerning a case, and has delivered it to others, cannot be perfectly impartial. In Staup v. Com., the more liberal doctrine was announced, that the opinion, which should exclude a juror, must be of a fixed and determined character, deliberately formed and still enter*314tained, which in an undue measure shuts out a different belief. This doctrine has been recognized in all of the later cases: O’Mara v. Com., 75 Pa. 424; Ortwein v. Com., 76 Pa. 414; Curley v. Com., 84 Pa. 151; Allison v. Com., 99 Pa. 17; Weston v. Com., 111 Pa. 251; Clark v. Com., 123 Pa. 555 ; Rizzolo v. Com., 126 Pa. 54; Com. v. Taylor, 129 Pa. 534; Com. v. McMillan, 144 Pa. 610; Com. v. Toth, 145 Pa. 308; Com. v. Crossmire, 156 Pa. 304. It has frequently been remarked that to return now to the old rule would exclude from the jury box in many instances every man of average intelligence. In the last case Mr. Justice McCollum says: “ Hence if from the examination of the juror it appears that he has the ability and the disposition to render a verdict on the evidence alone, the law adjudges him to be competent, notwithstanding it would require evidence to change the impressions or opinions formed from what he has heard or read about the affair under investigation.” To this general rule there is one recognized exception, and that is where the juror has formed an opinion from hearing or reading the evidence upon a former trial. In srich case he is held to be incompetent, even if the opinion thus formed does not come up to the standard of a fixed opinion: Staup v. Com., supra; Allison v. Com., supra. But this exception has not been extended beyond its strict letter.- It does not apply to an opinion formed from hearing or reading the evidence upon a preliminary examination before a coroner or committing magistrate : Allison v. Com., supra; Clark v. Com., supra; nor to the reading of fragmentary reports of the former trial of one jointly indicted with the defendant: Weston v. Com., supra; Taylor v. Com., supra. See also Com. v. Toth, supra.
But it is argued that the present case is exceptional, because of the juror’s interest as a part owner of a newspaper in which editorials had appeared concerning the defendant’s case. It is vehemently asserted in the printed brief, as it was in the oral argument, that the juror had so far prejudged the case that he could not be impartial; because he was face to face with the question not of the defendant’s guilt or innocence under the testimony, but of the defendant’s guilt or his own in persecuting and misrepresenting him; either the defendant must be found guilty, so far as the juror'was concerned, or the latter was responsible before the public for having persistently accused *315and defamed him. When such a case as the counsel suppose is presented, there is little doubt as to the'ruling which any fair minded judge will make. But unfortunately for the argument, the challenge was not supported by proof of these facts. They are not to be inferred in order to lay ground for convicting the trial court of error. The question is to be determined upon the evidence pertinent to it, submitted to the court below and brought up with the record, and that alone. To determine it otherwise would be to commit the sin which the counsel so severely and so justly denounce. The facts brought upon the record by the hill of exceptions are as follows: The defendant was arrested in June and was tried in July.- It appears from the examination of the juror, that he is ‘a part owner of the Pittsburgh Leader, a newspaper published in Allegheny County where the case was tried; that during the preceding winter editorials had appeared in that newspaper “pronouncing the defendant guilty; ” and that the juror read these editorials and approved the sentiments therein expressed. The juror was not one of the editorial writers, and did not write the editorials in question. Nor, so far as appears, did he inspire them. The nature and extent of his interest in the newspaper property, and of his duties in connection with its management, do nob appear. He was of course legally responsible for its editorial utterances, although he may not have directed and controlled them. So also is any person responsible for his utterances concerning the guilt of one accused of a crime, but this of itself does not make him incompetent to sit as a juror in the case. It is to be observed further, that it does not appear in what tone the editorial opinion of the defendant’s guilt was expressed, nor upon what evidence, information or investigation it was based; and it is to be remembered that the opinion was expressed concerning a matter proper for public investigation and information. . Finally, the juror expressed a belief that he could try the case upon the evidence uninfluenced by his former opinion. Comparing his declarations in this regard with many of those expressed by jurors in the cases cited, it will be found, that they are fully.up to the legal standard. So far as we can judge from the printed report of his examination taken as a whole, he was candid in his answers, and positive in his belief that he could try the case impartially.,
*316If everything be eliminated from the case except what is shown by the bill of exceptions, a ruling that the juror was disqualified would, in effect, be equivalent to declaring that a part owner of a newspaper, no matter what his connection with its management, is incompetent to sit as a juror in a criminal case, if he has formed or expressed an opinion as to the defendant’s guilt, and the same opinion has been editorially expressed, although not by him, in the newspaper. There is no unbending rule of law, which declares, that such a person must be conclusively presumed not to have the ability and the disposition to try the case, and to render a verdict, on the evidence, and that alone. The question in his case as in all others is, whether he has a fixed or deliberate opinion. It is to be determined as a matter of fact from his whole examination and from all the circumstances. His interest in the newspaper in which the editorials appeared is a fact to be taken into consideration along with all the other circumstances, but it is not of itself conclusive. Again, the finding of the trial judge as to the juror’s ability and disposition to hear and decide the case impartially upon the evidence is not absolutely binding on us, but it is entitled to great weight. The inquiry turns upon the character of the opinion. Is it a prejudgment of the case ? Has it such fixedness and strength as will probably influence and control the juror’s verdict or his consideration of the evidence ? These are questions addressed primarily to the conscience and discriminating judgment of the trial judge. “Much weight therefore is to be given to the judgment of the court below, in whose presence the juror appears and by whom his manner and conduct as well as his language are scrutinized: ” Ortwein v. Com., 76 Pa. 414. “The disposition of a challenge depends on the finding of a fact, and in passing upon such finding here we must consider the evidence as a whole, and remember that the examination was in the presence and under the jurisdiction of the court below, and that it had better opportunity to discover the nature and character of the opinion held by the juror than is afforded this court on review: ” Clark v. Com., 123 Pa. 555. The same idea was expressed in Com. v. Crossmire, 156 Pa. 304, where the court said: “ It is proper to add that in reviewing the decision of the court below upon a challenge for such cause as is alleged in this case,, nothing short of palpable error in it will justify a reversal of it.”
*317It would serve no good purpose to encumber this opinion with further citations or more extended quotations. Viewing the examination of this juror in the light of the general principles enunciated in the cases above cited, and comparing his answers with those given by jurors held therein to be competent, and remembering further that the court below had opportunities which we have not, to judge of his candor and of the nature, character and strength of Ms opinion, I am not convinced that the court committed error in overruling the challenge. For these reasons I must dissent from the opinion of the majority in sustaining' the first assignment.
In my opinion the defendant had a fair trial according to the forms of law. No error was committed either in the trial or the sentence of which the defendant can justly complain; therefore I would affirm the judgment.