(dissenting).
I dissent. The majority concede that the questions put to the prospective jurors were proper and ought to have been answered so that defendant could, exercise his right of peremptory challenge intelligently. The law assures everyone accused of crime a fair trial. It makes no distinction in this regard between the one against whom the state has conclusive proof and the one against whom it has barely sufficient to .submit to a jury. Among other matters which the statute specifically names as rights of the accused in a criminal trial are certain peremptory challenges and the last argument to the jury, the sole arbiter of his guilt or innocence. I conceive these to be rights which an accused cannot be deprived of without also depriving him of a fair trial. He may waive them, but defendant did not do so in this case. The record here does not suggest that defendant’s attorney was unduly prolix in the voir dire examination of the jurors. The questions were few and directed to pertinent matters. That courts regard a denial of the examination here sought as reversible error is sustained by abundant authority. This court in Spoonick v. Backus-Brooks Co. 89 Minn. 354, 94 N. W. 1079, says of a litigant’s examination as to a juror’s qualification: “It is his right first to learn the facts, and he must do so to exercise intelligently his right to challenge peremptorily.” Heydman v. Red Wing *428Brick Co. 112 Minn. 158, 127 N. W. 561, holds: “In examining jurors, however, an attorney is not limited to questions which would establish bias. He has a right to elicit sufficient information to enable him to determine the advisability of interposing a peremptory challenge.” Decisions of other courts and textwriters express the same view: In Comfort v. Mosser, 121 Pa. St. 455, 15 Atl. 612, Justice Paxson says: “A party to a suit has a right to an impartial jury. Hence it has always been customary to allow him to examine a juror on his voir dire as to any matter which may affect his mind or show bias or prejudice. The result of such an investigation may or may not amount to a disqualification of the juror. That is a question which arises only upon a challenge for cause. The party has a right to such examination to enable him to exercise his peremptory challenges intelligently and I have never known it to be denied.” In Hale v. State, 72 Miss. 140, 149, 16 South. 387, 389, it is said: “It was his right to make such examination as would enable Mm to decide if there was ground for exercising his great right to peremptorily challenge. This right, conferred upon him by law, could only be intelligently exercised after a full and fair inquiry of each juror as to the exact state of his mind and feelings, not only as affecting the defendant personally and primarily, but as likely to affect his action as a juror even, and perhaps, unconsciously to Mmself. The office of peremptory challenge is to protect the defendant against those legally competent, but morally, or otherwise, unfit or unsuitable to try the particular case, and to deny a full and fair examination of a juror, in order to wisely exercise the peremptory challenge, would be practically to nullify the right. For of what avail would a peremptory challenge be if exercised at random or blindly, and without reason?” Lavin v. People, 69 Ill. 303, is a case on all fours with the one at bar. It was a prosecution for illegal sale of liquor. A prospective juror was asked whether he was a member of a temperance society or connected with any society ■organized for the purpose of prosecuting violators of the temperance laws. Upon objection of the state’s attorney the questions were not answered. The court reasoned as in .the opinions already quoted and concluded: “The questions were asked with a view to call out *429facts upon which to base a peremptory challenge, and for this purpose they were proper, and should have been answered.- That the refusal of the court to permit the questions asked, to be answered, was error for which the judgment should be reversed, there can be no doubt.” See also Thompson, Trials, § 101; Watson v. Whitney, 28 Cal. 376; Donovan v. People, 139 Ill. 412, 415, 28 N. E. 964; State v. Mann, 83 Mo. 589. In thickly settled communities litigants do not know the jurors. Jury lists are not furnished or are not available beforehand, so that interested parties may learn of the individual juror’s connections. The practice is not to privately obtain information of or from those on the jury list to ascertain their qualifications to sit in the different cases that come up for trial during a term of court. That matter of gaining information would now be justly condemned. But information concerning a juror is needed in order to properly exercise the peremptory challenges as well as those for cause, and the proper place to gain the same is in open court. This assures fairness to both litigants. State v. Bresland, 59 Minn. 281, 61 N. W. 450, refutes the contention that no prejudice resulted in this case. It is no answer to say that defendant had a fair and impartial jury. Who knows? He was denied the right to ascertain.
The law gives a litigant the right to have his attorney argue the case to the jury when the evidence is in. Svensson v. Lindgren, 124 Minn. 386, 145 N. W. 116, Ann. Cas. 1915B, 734. In a criminal case the closing argument is by section 9206, G. S. 1913, given the accused. This right is of no avail if it may be met by the court’s instructions as was done in the instant case. I shall only make one or two references to the parts excepted to. The' testimony was that a large quantity of mash designed for distillation into potable alcohol and some of the liquor found had been taken and at once destroyed by the officers who served the search warrant in this case. Defendant contended that the claimed mash was nothing but slop and hog feed, and the fluid in the bottles destroyed was distilled water. The court’s charge indicates that defendant’s counsel argued that, since the officers wrongfully destroyed evidence, the jury had the right to draw the inference that had such evidence been available at the trial, it would have been favorable to defendant. But the *430court met and refuted this argument by the use of an incorrect statement of the law to the effect that it was the duty of Federal officers to destroy any liquor manufactured in violation of law. I have been referred to no law so authorizing. It may only be done under order of court. The property taken from defendant and destroyed was so destroyed without any judicial order or direction. The court also improperly fortified the testimony of the chemist, and needlessly suggested that there be no abuse by the jury of the reasonable doubt to which defendant was entitled. To my way of thinking the major part of the charge was argumentative. What was said in Johnson v. Walsh, 83 Minn. 74, 85 N. W. 910, and State v. Yates, 99 Minn. 461, 109 N. W. 1070, is clearly applicable to those parts of the charge upon which errors are assigned. The temptation may come strongly to a trial court to refute unfair and specious arguments so often made by a defendant’s attorney, since our statute gives the state no right to answer them in a criminal case and nevertheless requires it to prove guilt beyond a reasonable doubt. Opinion may be divided as to the wisdom of this statute. But so long as it remains courts should respect it. Should the attorney of the accused in his closing address base arguments upon incorrect principles of law, the court may and should call the attention of the jury to the inaccuracy and caution them against being misled thereby.
Because defendant was deprived of exercising his statutory right of peremptory challenge to jurors, and because the trial court did not only ansiver the closing arguments of defendant’s attorney, but in part based such answer upon a law which does not exist, I think defendant was deprived of his constitutional right to a fair trial. He is entitled to such a trial even though guilty, since under our law, as it now stands, the court may not direct a verdict against one accused of crime.
The opinion herein states that it is significant that Mrs. Mulroy was not called. But what object was there in calling her, for, when defendant offered to prove that she was under physician’s care and on his advice the still was procured to distill water for her use, it was unhesitatingly held improper. The presence of the still was a *431damaging circumstance of which the state rightfully made much. The defendant was not permitted to show its presence for an innocent purpose. It is not entirely clear that the samples taken from defendant’s place were not mixed with samples from other raided places. The officers were a little confused in their testimony. At least there was a proper jury question, even though' defendant was unduly restricted in his cross-examination of the state’s witnesses upon that issue. There was evidence that bichloride of mercury was put in the samples to arrest fermentation. None was detected by the chemist nor was it shown that a sufficient amount to effect the purpose was used. The defendant is a farmer living in the western part of Nobles county for 34 years. He had a family and an invalid wife. He gave his explanation of the presence of the mash and so-called liquor. He says he knew neither the taste nor smell of whiskey. The jurors were not required to believe his testimony, but they could if they chose. He was entitled to have proper evidence which he offered received, and his own testimony weighed, as upon a fair trial. If the issue had been in a civil action a verdict could not have been directed against him.