OPINION ON REHEARING.
*388The opinion of the court was delivered by
Smith, J.:Upon a reconsideration of this case we have concluded, with some reluctance, to overrule the former decision of this court and to affirm the judgment of the court below. Our former decision reversing the judgment of the trial court was based upon an alleged error of the court in overruling the challenge of the defendant to juror Fish on the ground of an opinion formed previous to the trial as to the guilt of the defendant. As remarked in the opinion, the extraordinary character of the evidence upon which the defendant was convicted was given some consideration.
It is contended, however, that in its appellate jurisdiction this court should pay no heed to the justice of a cause, but that its sole function is the correction of errors in the proceedings brought up by the appeal; that the rules of law are inflexible, in so far at least that if the verdict is sustained by some competent evidence, and there is no clear infraction of a rule of law in the instructions or rulings of the court, a judgment based upon such verdict should not be reversed although the judgment may appear to effect an injustice. As an abstract proposition this contention is well sustained. Courts, however, are composed of men; and men whose lives are devoted to the administration of justice have ever been, and always will be, prone to look beyond technical considerations to final results. In the case at bar the conduct of the defendant in leaving the state when he was under bond to appear and answer to the charge, and also a statement in reference to the matter which was attributed to him, go far toward justifying the verdict and judgment and giving an unfavorable construction, as to him, of certain evidence which would otherwise seem incredible.
As indicated in the former opinion, the portions of the evidence of juror Fish which were quoted were excerpts. Interspersed with these statements were others: That the defendant was a stranger to the juror; *389that the juror had formed no opinion from what he had heard as to the merits of the case; that, in substance, he knew nothing of the case except what he had heard in regard to the defendant’s having gone away; that he could set aside any impression he had and give the defendant a fair trial and follow the law and the evidence.; and that he thought he could give the defendant the presumption of innocence. The juror was asked leading and suggestive questions by the prosecuting attorney, the attorney for the defendant, and also by the court, and he seems to have adopted nearly every suggestion made to him and to have answered as the one asking the questions appeared to 'desire. He abundantly proved both his qualification and his disqualification as a juror. If he had served on the jury and they had been unable to agree he would probably have agreed with one part that the defendant was guilty and at the same time with the other part of the jury to a verdict of not guilty. Be it said, however, that the juror seemed to understand fully the purport of the questions and to answer them frankly. With eleven men so constituted upon a jury the twelfth man, being of positive opinions, could return a verdict either way he chose. He would practically be the entire jury.
Judged alone by the evidence as reported, the juror might well have been excused. His qualification, however, was a question of fact to be tried by the court, and the court saw the man, observed his demeanor and bearing, and decided the fact. While perhaps the ordinary rule does not obtain — that a finding of fact in issue upon a trial, made by a court or jury, will be sustained if supported by any evidence — yet the finding in this case, although made upon a summary hearing, is entitled to consideration for reasons before stated, and as it is not clear that a prejudicial error occurred the finding is sustained.
This case- well illustrates the evils of asking leading and suggestive questions to jurors upon their voir dire. *390It is sometimes as objectionable as úpon the trial of a formal issue, and should be discouraged, or at least limited. Its only excuse is the summary character of such inquiries. It saves time.
The judgment of the district court is affirmed.
Mason, Porter, Graves, JJ., concurring. Johnston, C. J., Greene, Burch, JJ., concur in the judgment of affirmance.