I can not agree in the conclusions of my brethren affirming this case. The bill of exceptions renders it certain that it would require evidence to overcome the conclusion in the juror's mind of the guilt or innocence of appellant. I am of opinion that the Bill of Rights is superior to the statute; and it guarantees the accused "a trial by an impartial jury." This juror was partial if his answers are to be taken as the criterion of his mental status. Certainly he was not "impartial;" he was not in a condition to give appellant *Page 338 the benefit of the presumption of innocence and reasonable doubt, as the law and his oath require he should. Both of these legal propositions were concluded in his mind, and he declared it would take evidence to change that conclusion. His oath required him to try the case on the facts adduced on the trial, giving defendant the benefit of the presumption of innocence and reasonable doubt; yet he states, it would take testimony to change his already formed conclusion before hearing the facts. Suit v. State, 30 Texas Crim. App., 319, is quoted. That opinion was written by the writer. The juror in that case stated he had an opinion which it would require evidence to remove, if the evidence was the same on the trial as he had heard it was; and if it was the same on the trial as he had heard, it would influence him. The bill in that case left the matter in that condition. Nothing is shown as to whether the facts on the trial were the same as he had heard they were. If the bill of exception in that case had shown the evidence introduced upon the trial was the same as that which had produced the conclusion in his mind, it occurs to me that the ruling would have been different. Be that as it may, the bill of exceptions in that case fails to show this court, and it may have failed to enlighten the court below, as to the similarity of the facts which produced the impression upon the juror's mind with those adduced upon the trial. This case is totally unlike that. Here the juror had his mind concluded; and there was no qualification or contingency about it; and it was so fixed that it would take evidence to remove that conclusion. The right to the "impartial" jury is guaranteed by the Bill of Rights, and neither legislative action nor judicial construction can change a partial juror into one that is "impartial." When the mind of the juror is made up beforehand, it is absolutely immaterial whence the reasons or causes therefor, or what induced that conclusion — he is disqualified. The sources of information may be looked to in order to test the mental status of the juror under such circumstances, but it does not change the fact of the partiality if once that conclusion has been fixed; that is, established in the mind of the juror. That conclusion, if established, is just as disqualifying when made up from reports, rumors and newspapers, as on the facts, provided the conclusion is established to the extent of requiring evidence to remove it. It is wholly immaterial how or why that conclusion becomes established. If it be established, the matter is settled, and neither the Legislature nor the court can constitute the juror "impartial." I believe the judgment should be reversed, and therefore I dissent. *Page 339