concurring in the judgment:
The affidavits on the part of the defendant in this case show that two of the jurors, who convicted him, had previous to the trial formed and expressed unqualified opinions adverse *233to tbe prisoner, and, as appears, were prejudiced and acted under tbe influence of bias in tbe consideration of tbe question of bis guilt. Tbe prosecution bas failed, satisfactorily, to sbow tbe contrary, or tbat tbe defense, in tbe exercise of reasonable diligence and vigilance, could have discovered tbe bias and prejudice.
A very careful examination and consideration of the record now before us, impels the conclusion tbat tbe trial was nob conducted before a fair and impartial jury as required by law. Such being tbe fact and this being a case in which tbe death penalty is to be inflicted, I concur in tbe judgment granting a new trial.