The appellant was indicted in the Pike circuit court for murder in the second degree, for the killing of Tom Bell by shooting him with a gun, etc. He was tried, convicted of murder in the second degree, and sentenced to eight years’ confinement at hard labor in the state penitentiary. Pie filed a motion for a new trial, which was overruled, to which he excepted and appealed to this court. As we could not reverse the judgment for the want of evidence to support the verdict of the jruy, we do not set out the. testimony.
It is urged in the motion for new trial that the jury was not properly sworn to try the case. While it is not satisfactorily clear, whether they were sworn to try the case, or were sworn only as to their qualifications as jurors, we only mention tins to prevent its occurrence again.
It was also made a ground of the motion that the court refused to give an instruction asked by the defendant, in approved form, defining reasonable doubt; the court having failed to give such an instruction. We think the instruction should have been given.
A juror, who was a justice of the peace, having been called and sworn touching his qualification as a juror, over the objection of .the appellant for cause, based on the fact that he was a justice of the peace, was pronounced competent by the court, to which appellant excepted and peremptorily challenged the juror. The statute' provides (Sand. & II. Dig., § 4302) that “whenever any juryman shall be presented for examination in impaneling any jury, it shall be a ground of peremptory challenge that said juror is a postmaster, justice of the peace or county officer.” We construe-this to mean that the fact that a- justice of -the peace is-a-jurof is-cause for -challenge.- Of course,' any-juror can be peremptorily-challenged; and/unless the statute-means that-the fact that a1-juror-is a justice of the peace is a disqualification, if the defendant-desires to avail' himself of the-fact, then it is meaningless nonsense. Undér the decision of Caldwell v. State ante, p. 822, this is reversible error., the defendant having exhausted his peremptory- challenges. ... - . -
•It is-also urged that another juror was-not a citizen of the state, but,- as this will not probably arise again, we pass it, as the case must be reversed for the error in pronouncing the justice of the peace competent, over the-objection-of-appellant.
For this error the judgment is reversed, and the cause is remanded for a new trial.-
Riddick and Wood, JJ., dissent.