dissenting:
Respectfully I dissent. My dissent relates primarily to the action of the trial court in refusing, upon a proper and timely motion made in behalf of the accused, to exclude two jurors who had sat on prior grand juries which indicted the accused for different hut related offenses. My view is that the trial court committed a flagrant and most unfortunate abuse of discretion in this respect and that, in line with previously well settled legal principles, the error on the part of the trial court is such as should have compelled a reversal and an award of a new trial by this Court. I believe, and shall undertake to demonstrate, that the holding of the Court in this respect is wholly lacking in proper precedent for its justification and contrary to the spirit of a rule which has endured for centuries as a valued safeguard against unfair trials of persons upon criminal charges.
In the syllabus of State v. McDonald, 9 W. Va. 456, this Court stated: “It is a principal cause of challenge to a juror that he was one of the grand jury which found the indictment.” This legal principle has been faithfully adhered to in this state since the time of its formation. See Dilworth v. Commonwealth, 12 Gratt. 689; State v. Cooper, 74 W. Va. 472, pt. 1 syl., 82 S. E. 358; State v. Jones, 128 W. Va. 496, 501, 37 S. E. 2d 103, 106. It is a legal principle which is universally recognized and applied. 31 Am. Jur., Jury, Section 228, page 191; 50 C.J.S., Juries, Section 224, page 966. *397It is buttressed by considerations of reason, common sense and justice.
Tbis relaxed application of tbe general rule seems to be based upon tbe following statement in 50 C.J.S., Juries, Section 224, page 966: “Tbe fact tbat one was a member of a grand jury wbicb indicted tbe accused for a similar offense is not ground for bis exclusion from tbe jury. * * *.” In support of tbat statement, a footnote refers to Johnson v. State, 34 Tex. Cr. 115, 29 S. W. 473, and 35 C.J. page 327, Note 34. In 35 C.J., Juries, Note 34, page 327, there appears a statement wbicb is tbe same as tbat quoted above from 50 C.J.S. Tbe footnote referred to in 35 C. J. as tbe basis for tbe statement, tbe same footnote referred to in 50 C.J.S., is as follows: “Johnson v. State, 34 Tex. Cr. 115, 29 S. W. 473. But see 2 Hawkins P.C. c.43, sec. 27.” Tbe precedents or autborities cited in tbe footnotes, do not sustain tbe proposition for wbicb tbey are cited. Quite tbe contrary is true. Tbis is tbe basis for my confident assertion tbat tbe Court’s bolding in tbis case is wholly lacking in precedent for its justification.
Johnson v. State, tbe Texas case referred to above and relied upon in tbe majority opinion was decided in 1895. Tbe opinion in tbat case cites no legal authority or precedent whatsoever, and it is quite brief. It does not appear from tbe opinion tbat objection to tbe petit juror was made before be was seated and permitted to serve. While it appears from tbe opinion that one of tbe petit jurors bad previously sat on a grand jury “wbicb presented a bill charging * * * a similar offense”, it does not appear tbat tbe similar offense was related in time or circumstances as are tbe offenses involved in tbe present case. Approximately one-balf of tbe length of tbe opinion in tbe Texas case is embodied in tbe following statement: “Tbe fact tbat one of tbe jurors who tried tbe case was on tbe grand jury wbicb presented a bill charging appellant with a similar offense to tbis, but not tbe same ipso facto, does not disqualify the juror. The *398transactions may have been distinct. * * (Italics supplied.) More pertinent, I believe, are comparatively recent Texas cases bolding, in accordance with the general rule, that a conviction must be reversed if, over objection of the accused, the trial courts fail to exclude as a petit juror one who sat on the grand jury which returned the indictment. Wolfe v. State, 147 Tex. Cr. 62, 178 S. W. 2d 274 (1944); Mitchell v. State, 116 Tex. Cr. 65, 27 S. W. 2d 800 (1930). II Hawkins Pleas of the Crown, page 577, to which reference was made in the Corpus Juris footnote, contains the following language, relating to disqualification of petit jurors: “ * * ■* exception against a juror, that he hath found an indictment against the party for the same cause, hath been adjudged good, not only upon the trial of * * * such indictment, but also upon the trial of another indictment or action * * * wherein the same matter is either in question, or happens to be material, though not directly in issue.”
It appears from the record, briefs and oral arguments in this case that the defendant, as county superintendent of schools, was charged with various instances of thefts or embezzlements of money or property belonging to his employer, the board of education. In connection with the voir dire examination it was disclosed that Orley Bell, one of the jurors who sat in the trial of the case, had previously sat on a grand jury which had indicted the defendant, apparently for theft or embezzlement of a welder. Marvin Daugherty, who sat as a petit juror in the trial of the case, had sat on a prior grand jury and had participated in the return of an indictment for embezzlement of $300 and an indictment for larceny of $300 against Eiley, the defendant.
The question naturally arises, why did not counsel for the accused strike Bell and Daugherty? Possibly the simple answer is that counsel for the accused moved the trial court to exclude a total of twelve prospective jurors on the basis of answers made by *399them on the voir dire examination. The motion was overruled. The accused, of course, was entitled to hut six peremptory challenges.
“A defendant in the trial of a felony is entitled to a panel of twenty qualified jurors, each free from bias or prejudice, before being required to exercise his right as to peremptory challenges.” State v. Flint, 142 W. Va. 509, pt. 1 syl., 96 S. E. 2d 677; State v. Gargiliana, 138 W. Va. 376, pt. 1 syl., 76 S. E. 2d 265.
Under the provisions of Code, 1931, 62-3-3, as amended, “ * # * one accused of a felony is entitled as a matter of right to a panel of twenty jurors, unexceptionable under the rules of the common law, before being called upon to exercise his right of peremptory challenge.” State v. Dushman, 79 W. Va. 747, pt. 1 syl., 91 S. E. 809. The majority opinion quotes from the Dushman case an enumeration of the principal causes for challenge at common law. To the same effect, see Watkins v. Baltimore & Ohio Railroad Co., 130 W. Va. 268, 274, 43 S. E. 2d 219, 223. The point I wish to emphasize is that the language quoted in the majority opinion from the Dushman case concludes as follows: “ * * * and causes of the same class or founded upon the same reason should he included.” I consider this as an admonition to trial courts that, in determining qualifications of petit jurors to sit in trials of criminal cases, substance, should not be sacrificed to mere empty form.
“The object of the law is to secure jurors whose minds are wholly free from bias or prejudice for or against the accused. State v. Hatfield, 48 W. Va. 561, 37 S. E. 626. This is the very basis for the great weight and sanctity given to their verdicts. Those who administer the law must respect its wise and salutary rules of procedure, in order that like respect for law and order may he inspired in others. * * *.” State v. Messer, 99 W. Va. 241, 245, 128 S. E. 373, 374. So basic and fundamental are our traditional requirements of fair trials of criminal cases by impartial *400juries that we should not split hairs and construct legal bases lacking in substance in determining qualifications of jurors for trials of such cases. “The power of the court to reject jurors of its own motion is not limited to a decision of the strict legal question of qualifications of the juror, or confined to the enumerated grounds of challenge * * *; but the court’s power may be exercised for any cause which the court in its discretion deems sufficient to render the juror unfit to serve.” 50 C.J.S., Juries, Section 249, page 1006.
The Court in the majority opinion seems to reason that the other offenses were part of a general plan or scheme and similar in character and that, therefore, evidence tending to prove the defendant’s guilt of the other offenses would have been proper in the trial of this case to show motive and intent, under a rule stated by this Court in numerous cases, including the following: State v. Withrow, 142 W. Va. 522, pt. 7 syl., 96 S. E. 2d 913; State v. Evans, 136 W. Va. 1, pt. 2 syl., 66 S. E. 2d 545; State v. Lewis, 133 W. Va. 584, pt. 4 syl., 57 S. E. 2d 513; State v. Geene, 122 W. Va. 51, syl., 7 S. E. 2d 90. From this, as I understand the majority opinion, it is reasoned that information Bell and Daugherty may have received relative to other related offenses while serving as grand jurors would have been proper evidence to go to the petit jury in the trial of this case and that, therefore, they were not disqualified to sit as petit jurors. I cannot grasp or discern a tenable basis for any such reasoning.
I am troubled also by the statement of the prosecuting attorney, in the presence of the jury, that documents in his possession related “* * * to other offenses, not the one charged in the indictment, * * This was a wholly uncalled for response to a proper request of defense counsel directed to the trial judge. I cannot agree that this gratuitous statement by the prosecuting attorney can be excused under the legal principles relating to invited error. The rule of invited error can have no proper application.
*401Obviously the statement made by the prosecuting attorney in the presence of the jury was prejudicial. This error and the error in not excluding Bell and Daugherty as jurors have a strong tendency to accentuate the evil in each other. When the statement was made by the prosecuting attorney, defense counsel merely moved for a mistrial. After the motion to direct a mistrial was overruled, counsel did not move the court to direct the jury to disregard the statement. I would not reverse on this latter ground alone, but I would reverse and grant a new trial on the basis of the trial court’s refusal, upon proper and timely motion, to exclude Bell and Daugherty from the panel of twenty jurors.