It is conceded that the accused had a fair trial by a jury of his own selection. No objectionable juror sat on the panel which convicted him. The only irregularity or illegality, if it can be styled such, made the basis for setting aside the verdict, is that the trial judge permitted the state to challenge peremptorily, and without alleging any cause, five more jurors than were allowed the state at the time the crime was committed, though the number challenged was one less than was allowed under the law at the time of the trial.
The opinion which annuls the verdict concedes that, if the state had challenged the five jurors for some declared cause and the judge had sustained such challenges, although such cause was unfounded in law and in fact, the defendant could not have complained, and the court would not have set aside the verdict.
And this has been the uniform ruling of this court. *Page 379
The ruling in the three cases cited in the opinion herein is to the effect that it was error to allow the state more peremptory challenges than was allowed by the statute, but no reason is given as a basis for the holding, except the mere fact that the statute restricted the number to less than the state was permitted to exercise.
The court in those cases did not take into consideration the doctrine of "harmless error," which is now so well embedded in our jurisprudence.
I am unable to see how the accused could have suffered any injury in this case, any more than he would have suffered if the five jurors had been set aside on an unfounded challenge for cause at the instance of the state.
I cannot subscribe to a ruling which sets aside a conviction on such a trivial error as the one committed by the trial court, particularly where it is patent that the defendant has suffered no injury from the mere technical error made by the court.
I therefore dissent.