Dissenting. — Not concurring in the opinion of the court, it is proper that I should briefly state the-grounds of my dissent. The “ Moberly Monitor” and “ The Herald,” newspapers published in Randolph county, when, the alleged murder was committed, and where the defendant was twice tried for the crime, published the proceedings and evidence on the first trial. W. A. Wright, Duffield, Reed, Winn, and others, summoned as jurors for the-second trial, stated on their voir dire examination, each, that he had formed an opinion as to the guilt of defendant from having read the report of the first trial in.the- “ Monitor ” and “ Herald,” and that it was such an opinion as would require evidence to remove,'but that he could try the case fairly and impartially, without regard to the opinion so formed. The court overruled a challenge of these jurors for cause, and they were placed on the panel from which the twelve were to be selected to try the case-
Section 22 of our bill of rights declares that: “ In criminal prosecutions, the accused shall have the right to a speedy public trial by an impartial jury of the county.” Section 1897 of the Revised Statutes of 1879, provides thatr “ It shall be a good cause of challenge to a juror that he-has formed, or delivered an opinion on the issue, or any material fact to be tried, but if it appear that such opinion is founded only on rumor and^newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn.” In a dissenting opinion in the case of-the State v. Barton, I took occasion to discuss the whole question on general principles, and will now therefore confine-myself to a consideration of the change made in the law *458by section 1897, supra. The words “ and newspaper reports” found in that section, were not in section 13, Wagner’s Statutes, 1103. What is meant by the expression “ newspaper.reports ? ” If it be construed to include reports of the proceedings and evidence on a trial of the cause, I do not hesitate to declare it as my opinion, that so much of the section’ is in direct conflict with the constitutional provision above quoted'. What is the difference'between hearing a witness to the transaction state the facts, and reading an authentic statement of what such witness testified to as the facts? The reason for excluding a juror who has read such statement, and, upon it, formed an opinion, is much stronger, than for the exclusion of one who has only heard the witness, not under oath, give his version of the case.
The .newspaper reports which the legislature intended to place upon the same ground as rumors, are those rumors which find their .way into the columns of newspapers. If it mean more than this, and we give effect to the construction contended for by the State, we utterly overthrow and set at naught section 22 of the bill of rights. The substance of the doctrine contended for is, that any one is a competent juror, no matter what may be his opinion, or how formed, if he will only swear that he can and will decide the case according to the law and the evidence, and those least able will most confidently affirm their ability so to do. But I will not extend these remarks. What is here said in connection with the dissenting opinion in the Barton case, fully sets forth my views on the whole question of the competency of one to sit as a juror on the trial of one of whose guilt or innocence he has formed or expressed an opinion, and these views are well sustained by the recent case of Greenfield v. The People, 74 N. Y. 280.
Judge Hough concurs with me.