Being convinced that my associates are correct in saying that the court committed error in refusing to sustain appellant's challenge for cause to the juror Archer, I am unable to agree that such an error was harmless and that the case should be affirmed. The result of the court's ruling in this case was that appellant was denied his statutory right to ten peremptory challenges. By the same process, the court could have overruled perfectly legal objections to two, and even ten, jurors and thereby to have forced appellant to exercise his ten challenges on men who were not qualified jurors at all. This would have left him without the privilege of eliminating obnoxious jurors, men who had no particular legal disqualification and yet whose business, religious or political alignments, or known personal likes and dislikes, association with parties adversely interested, or even personal appearances, might have made them undesirable in that particular case. Peremptory challenges allowed by the statute are accorded a party on trial to insure him against embarrassment and uncertainties arising from the *Page 68 presence on a jury panel of qualified jurors under the law, who may be thus related to him. The privilege goes further, and permits the elimination of a juror about whom the party knows nothing. It is a right to arbitrarily eliminate from the jury to try him ten men in felony cases less than capital and fifteen in capital cases, without assigning any reason therefor. The effect of the majority holding in this case, admittedly supported by many decisions of this court, may destroy the right of peremptory challenges entirely. If it destroys only one, as it did in the instant case, then the party on trial must face a jury selected contrary to the sacred provisions of our criminal procedure. In this statement, I am not without support in the decisions of this court.
I am unable to distinguish the question presented here from that which worked a reversal in Mitchell v. State,27 S.W.2d 800. One Dove was on the jury panel. On voir dire examination, he called attention to the fact that he was probably on the grand jury returning the indictment. The court examined the jury list and, failing to find his name there, overruled the challenge to him. An examination of the record in that case shows that the bill of exception did not bring forward reasons further than that the court committed error in overruling the challenge. Yet this court reversed the case, solely on the ground that the court committed error in failing to sustain that challenge. My associates correctly state, and the State's brief in the instant case concedes, that the same error was made in the case at bar. Yet the conclusion is reached that it should be affirmed because appellant was forced to take an objectionable juror and his bill fails to state just what that objection was. As I understand the holding, it is that unless appellant showed the juror they were forced to take to be in some manner disqualified by law to serve, the error became harmless. Such theory is now, and has always been, contrary to and defeats the very purpose in the enactment of a law giving the party ten peremptory challenges. If he can show a good reason for objecting to a juror, it becomes the duty of the court to excuse such juror.
The citations from Mr. Branch's very valuable work have no further force than to bring forward the result of the holdings of this court and present no argument whatsoever in favor of them. It is interesting to note that in Branch's P. C., page 277, Sec. 537, there is a discussion of what is meant by a peremptory challenge. He says: "A peremptory challenge is made to a juror without assigning any reason therefor." It is a right to reject a juror who is not subject to some legal objection that *Page 69 would eliminate him. Heskew v. State, 17 T. C. A. 165; Edmonson v. State, 44 S.W. 154; Hill v. State, 10 T. C. A. 618; Wade v. State, 12 T. C. A. 358; Monk v. State, 27 T. C. A. 457,11 S.W. 460; Riddles v. State, 46 S.W. 1060; Benson v. State,254 S.W. 793; Norman v. State, 52 S.W.2d 1051.
Again, Judge Morrow, in a very similar case to that now before us, has said in Benson v. State, 254 S.W. 793:
"The statute confers upon one accused of a felony the right of exercising ten peremptory challenges. A peremptory challenge as defined by statute, 'is one made to a juror without assigning any reason therefor.' If the privilege thus conferred is arbitrarily denied, the right to a fair trial is abridged. See Kerley v. State, 89 Tex.Crim. R., 230 S.W. 163; 16 Ruling Case Law, p. 253, and other authorities cited in the Kerley case, supra. * * * See Lewis v. U.S., 146 U.S. 370, 13 S. Ct. 136, 36 L. Ed. 1011. * * * As applied to a peremptory challenge, any juror tendered, whom the accused desires to challenge, is objectionable, within the meaning of the law. See Kerley v. State, 89 Tex.Crim. R., 230 S.W. 164, from which we quote:
" 'In conferring it, the law gives effect to the natural impulse to eliminate from the jury list not only persons who are rendered incompetent for some of the disqualifying causes named in the statute, but persons who, by reason of politics, religion, environment, association, or appearance, or by reason of the want of information with reference to them, the accused may object to their service upon the jury to which the disposition of his life or liberty is submitted. In other words, the law fixes the number of challenges and confers upon the accused the right to arbitrarily exercise them.' "
It appears, then, from the majority opinion and those cited to support it, that when the court has erroneously failed to sustain a challenge for cause to a juror, it becomes incumbent upon the complaining party to go further and show injury. That is the holding of the majority in the instant case. On the other hand, if the party does the best he can, makes an effort to eliminate the juror thus forced upon him, he assumes the burden of showing his injury, to a very unusual degree. If he does not eliminate the juror by the use of one of his peremptory challenges and permits the disqualified juror to serve, the case should be reversed. At least, such is the logical conclusion from a consideration of the Mitchell case, supra. The two lines of decisions are in conflict and ought to be harmonized. The only right way to do this is to follow what the Legislature says, and secure to *Page 70 the party on trial his right to the legal number ofperemptory challenges, in the full and accepted meaning of that word.
We must not overlook the fact that when a party is called before the bar of justice he has had no part in the selection of the men who compose the panel from which his jury is to be selected. He has a legal right to the elimination from such panel of every disqualified juror and he has the further right to challenge the specified number without assigning any reason therefor. This was not accorded appellant in the case now before us. He was forced to eliminate a disqualified juror by the use of one of his peremptory challenges and, having exhausted his ten challenges, to accept another who was objectionable to him. It is sufficient that he was merely obnoxious, or even that he did not know anything about him. Because he was defeated in such right, it is my opinion that this case should be reversed. The fact that it would overrule any number of the previous decisions of this court is immaterial. If they are wrong, they ought to be overruled, and it has been the policy of this court always to change any ruling whenever it appears from a presentation of the question that the former rulings are erroneous.
I respectfully record my dissent.
ON MOTION FOR REHEARING.