concurring:
Allsup has appealed from his conviction for two bank robberies, contending that multiple errors in the course of his trial denied him a fair trial. In an opinion authored by Judge Hufstedler, the majority agrees with Allsup that the cumulative errors dictate that he must be tried anew.
Of the many contentions of error, the majority found it necessary to address only four: (1) The inadequacy of the voir dire of the jury on the insanity question; (2) the failure of the district court to excuse two jurors for cause; (3) the district court’s intervention in cross-examination of a Government witness which resulted in an inflammatory remark from the witness; and (4) the correctness of the district court’s refusal to grant Allsup’s motion to sever the two bank robbery counts. Of the four, the majority concluded that the district court had erred with respect to the first three, the cumulative effect thereof mandating a new trial. While I concur, I would like to address the issue presented by Alls-up’s second contention, namely, the failure of the district court to excuse two jurors for cause.
As previously mentioned, Allsup was accused of two counts of robbery of two separate banking institutions. The defense requested voir dire of the jury concerning whether anyone on the panel was an employee of either of the two banks in question. Subsequently, this question was asked by the trial judge. Prospective jurors Shappel and Parker both responded that they worked for the First National Bank but not at the branch that had been robbed. Upon further inquiry by the Court, both jurors stated that they would be able to decide the case fairly in spite of their employment. At the end of the Court’s voir dire, counsel for Allsup requested permission to approach the bench. The request was refused. Thereafter, counsel for both the Government and defense were instructed to exercise their peremptory challenges, which they did. In the course of expending all of its ten allotted peremptory challenges, the defense excused the two bank employees.
After the first witness had been sworn and testified, counsel for Allsup requested to take up two matters with the Court outside the presence of the jury. A recess was taken. At this time, counsel for the defense informed the Court that the purpose of the earlier request to approach the bench during the voir dire of the jury was to request of the Court to dismiss for cause the two bank employees.
ISSUE: Is the error in refusing to excuse prospective jurors for cause cured when the jurors were peremptorily challenged by the defense; the defense used all of its allotted peremptory challenges; and the defense cannot demonstrate that an objectionable juror sat as a result thereof?
CONCLUSION: Recent federal appellate decisions indicate that the error is not cured and, furthermore, warrants automatic reversal.
*74At the outset, it must be noted that the ensuing discussion is factually limited to situations where, as in this case, the prospective juror or jurors should have been dismissed for cause,1 where the objectionable juror was stricken by the defense, and where the defense exhausts all of its allocated challenges.2
The majority states that it is reversible error, implicitly even without a showing of prejudice to the defendant, for a court to force the defendant to use his peremptory challenges on persons who should be excused for cause because this has the effect of abridging the right to exercise peremptory challenges. This argument is predicated upon four cases: Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); U. S. v. Nell, 526 F.2d 1223 (5th Cir. 1976); U. S. v. Boyd, 446 F.2d 1267 (5th Cir. 1971), and U. S. v. Turner,3 558 F.2d 535 (9th Cir. 1977).
In Swain v. Alabama, supra, a black, who was convicted of rape by an all-white jury, appealed from his conviction asserting, inter alia, that he was denied equal protection of the law by a discriminatory jury selection in that the prosecutor used his peremptory strikes to remove all black veniremen. In stating that the denial or impairment of the right to peremptory challenges is reversible error without a showing of prejudice, the Supreme Court emphasized the importance of the right. The Court said *75that the purpose of the peremptory challenge is not only to “eliminate extremes of impartiality on both sides, but also to assure the parties that the jurors before whom they try the case will decide on the basis of evidence before them, and not otherwise.” Swain at 219, 85 S.Ct. at 835. As such, the Court concluded, the Constitution could not require an examination of the prosecution’s reasons for the exercise of his challenges in light of the function it serves in a pluralistic society in connection with the institution of the jury trial.
The remaining two cases relied upon by the majority present a slightly different factual situation. Unlike the situation presented in Swain, where the defendant complained that certain veniremen, who he wanted to sit but were not allowed to sit because the prosecutor peremptorily excused them, these cases present the situation where the proposed veniremen, who the defendants did not want to sit, would have been allowed to sit but for the exercise of the defendant’s peremptory challenges.
In U. S. v. Boyd, 446 F.2d 1267 (5th Cir. 1971), the defendant complained that certain prospective jurors who were employees of the Government, who were peremptorily stricken by the defendant, should have been excused for cause. While the Court concluded that there existed nothing in the record which would indicate that the lower court abused its discretion in refusing to dismiss the Government employees for cause, it did state by way of dicta in a footnote, that:
“ . . . if the refusal to strike for cause had been erroneous, this action by the defense (the fact that the defense peremptorily struck the disputed jurors and used all of its challenges) would not have cured the error. Francone, et al. v. Southern Pac. Co., 5 Cir. 1944, 145 F.2d 732. The effect of this action would have been the reduction in number of peremptory challenges allowed the defense, an impairment of a substantial right which would require a reversal.”
Similarly, in U. S. v. Nell, 526 F.2d 1223 (5th Cir. 1976), the defendant appealed his conviction of embezzling union funds, complaining, inter alia, that he was forced to expend two of his peremptory challenges on persons who should have been excused for cause. The first disputed prospective juror who was removed peremptorily by the defense stated that he had a strong distaste for unions. The appellate court concluded that the lower court should have dismissed him for cause.
“Because Mr. Bougher admitted to actual bias, it was error for the court to deny Nell a challenge for cause. Since the effect of the court’s action was to reduce the number of peremptory challenges allowed the defense, we have no choice but to reverse. United States v. Boyd, supra, 446 F.2d at 1275 n. 27.10
In United States v. Turner, 558 F.2d 535 (9th Cir. 1977), this court held, at page 538:
“An error in restricting the exercise of peremptory challenges results in an automatic reversal. The defendant need not show that he was prejudiced by the error. (Swain v. Alabama, supra, 380 U.S. at 219, 85 S.Ct. at 835, ‘The denial or impairment of the right [of exercising peremp-tories] is reversible error without a showing of prejudice [citations omitted].’).”
In U. S. v. Turner, the impairment of the exercise of peremptory challenges arose not in the factual context of the previously discussed cases, in .which the impairment resulted from not properly excusing prospective jurors for cause, but, rather from a dispute between the trial court and the defendant as to whether the defendant had actually waived one of his peremptory challenges. The trial court thought that he did; this Court stated that he did not. Since the defendant was improperly denied a peremptory challenge, this Court held that the conviction should be reversed, even without a demonstration that the defendant had *76been prejudiced by the denial of the peremptory challenge.
The rule that automatic reversible error is committed when a defendant is forced to expend a peremptory challenge on a proposed venireman who should have been dismissed for cause has not always been the law, however.
In a line of earlier cases, there is authority for the proposition that once it is determined that an improper ruling was made on a challenge for cause, a new trial will not necessarily be granted, even where the defendant has exhausted all of his peremptory challenges. Some courts have placed the burden on the challenging party to demonstrate that because he used a peremptory challenge on an incompetent venireman, an objectionable juror was allowed to serve.
In State v. Springer, 172 Kan. 239, 239 P.2d 944 (1952), the Kansas Supreme Court stated, when confronted with the issue of whether it was reversible error when a defendant was forced to expend a peremptory challenge on a proposed venireman who should have been dismissed for cause:
“The constitutional guaranty is that an accused shall be tried by an impartial jury. The matter of peremptory challenges is merely statutory machinery for carrying out and securing the constitutional guaranty. Error in overruling a challenge to a juror is not ground for reversal unless the accused was prejudiced thereby. The real question is — Was the jury which tried the defendant composed of impartial members? In the absence of any objection on the part of defendant to any member as it was finally drawn to try him we cannot say it was not impartial.” (Emphasis added) Springer at 948.
Similarly, in Los Angeles & S.L.R. Co. v. Umbaugh, 61 Nev. 214, 123 P.2d 224, the Nevada Supreme Court stated:
“Defendants assigned as error the ruling of the trial court in denying its challenge to venireman Gerald H. Musser. Musser was thereafter excused from the jury by reason of the exercise of their third peremptory challenge. It does not appear that they would have employed another peremptory challenge, if they had been entitled to it, nor is there any suggestion that an impartial jury was not obtained. So, it is difficult to see how defendant was prejudiced by the denial of its challenge by the court. A consideration of all the prospective juror’s examination touching his qualifications convinces us that the court’s ruling was not open to criticism.” Umbaugh, 123 P.2d at 232.
And finally, in Arkansas State Highway Commission v. Dalrymple, 252 Ark. 771, 480 S.W.2d 955 (1972), when confronted with the same issue as addressed by the Nevada and Kansas courts, the Court stated:
“Appellant’s challenge to venireman Easterling was made because the voir dire examination showed that he had an opinion of real estate values in the area and because he knew one of the prospective witnesses. The challenge to venireman Rowe was on the basis that he also knew one of the prospective witnesses. After the challenges were overruled, the panel was completed and each side, pursuant to Ark.Stat.Ann. Sec. 39-229 (Repl. 1962), struck three names. Appellant struck the names of Easterling, Rowe and one other but made no showing that he would have struck the name of any other juror if he had had a peremptory challenge left. Under such circumstances we hold that appellant has shown no prejudice. ... As was pointed out in Mabry v. State, 50 Ark. 492, 8 S.W. 823 (1888), the right of peremptory challenges is conferred as a means to reject jurors— not to select jurors, and until such time as a party is forced to take an objectionable juror without the privilege of exercising a peremptory challenge, he has shown no prejudice. Green v. State, 223 Ark. 761, 270 S.W.2d 895 (1954). Here, as in the Roark Transportation case, appellant does not contend that any of the jurors who served were disqualified. Consequently appellant has shown no prejudicial error.”
See also Rickett v. Hayes, 256 Ark. 893, 511 S.W.2d 187 (1974), and Grasham v. South-*77era Railway Company, 111 Ga.App. 158, 141 S.E.2d 189 (1965).
I don’t think that appellate courts should reverse trial courts unless the error below in depriving a party of a statutory right to peremptory challenges, is shown by the party to have been prejudicial and to have deprived him of a fair trial.
In conclusion, it appears, notwithstanding the earlier authority to the contrary, which I believe to be the better rule, under Swain, Boyd, Nell and Turner the law now is that an error in restricting the exercise of peremptory challenges results in automatic reversal.
. If, instead of satisfying the predicate necessary to dismiss a juror for cause, that is, a finding of some “actual or implied bias,” it was merely demonstrated that a possibility of prejudice existed in a prospective juror and that juror was peremptorily excused by the defense, it has been stated that there would be no abuse of discretion of the trial court sufficient to warrant reversal. In Mares v. U. S., 383 F.2d 811 (10th Cir. 1967), cert. denied 390 U.S. 961, 88 S.Ct. 1060, 19 L.Ed.2d 1157, in reviewing an overruled objection for cause of a prospective juror- who had viewed a newspaper article deemed prejudicial to the defendant, the Court stated, at 812:
“At the most, we have a showing of a possibility of prejudice and that is not enough. In our opinion the trial court did not abuse its discretion in denying the challenge against Mrs. Nusbaum. In any event the defense used its third peremptory challenge to excuse Mrs. Nusbaum. No showing is made that the jury which actually tried the case was anything but fair and impartial.” (footnotes omitted)
. Similarly, it has been stated that the defense cannot complain if it had to peremptorily remove an objectionable juror where either it did not expend all of its peremptory challenges allocated to it or it was granted additional challenges commensurate in amount with the number of disputed proposed veniremen. Harper v. Adams, 166 So.2d 824 (Fla.App.1964); Mellinger v. Prudential, 322 Mich. 596, 34 N.W.2d 450 (Mich. 1948); Cox v. Sarkeys, 304 P.2d 979 (Okl.1956).
. In addressing the issue of whether an error in restricting the exercise of peremptory challenges warrants automatic reversal, neither Swain, Nell, Boyd nor Turner interprets or relies on any constitutional provision whether it be state or federal. In fact, while Turner holds that the peremptory challenge is one of the most important rights secured to the accused, it recognizes that:
“Neither the number of peremptory challenges nor the manner of their exercise is constitutionally secured.” Turner, at 538.
The nexus between the federal constitution and the right to peremptory challenges appears to be that while the right to trial by impartial jury is constitutionally secured, the grant and exercise of peremptory challenges has statutory law as its genesis and protection. This relationship was defined in U. S. v. Sams, 470 F.2d 751 (5th Cir. 1972).
At page 753, it was stated:
“[The defendant] also contends that the curtailment of his privilege to exercise his [peremptory] challenges amounts to a violation of the guarantees of the Sixth Amendment providing for trial by jury. '
“The government replies, first, that the Supreme Court has held that the number of, and the manner of exercising, peremptory challenges does not go to the constitutional guaranty of a right to trial by jury, . . .”
(emphasis added)
The Court responded:
“We recognize that the Supreme Court has said, ‘There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial jury is ail that is secured.’ Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 30, 63 L.Ed. 1154. It seems clear, therefore, that unless, since the Court’s decision in Stil-son some intervening decision has emerged, the granting and exercising of the right to peremptory challenges must be tested by the rules, which of course, have the effect of statutory law. We find no such case.” (emphasis added)
Defense counsel told the trial court several times that its rulings were forcing him to use up his peremptories on jurors who should have been excused for cause. Since he actually did run out of peremptories, and since the court offered no more, the rulings could not have been harmless error.” Nell at 1230.