The State has filed a motion for a rehearing herein, and we fear it has failed to catch the full meaning of the majority opinion in the case of Wolfe v. State, 178 S.W.2d 274, under the authority of which opinion this cause was reversed. In the Wolfe case it was admitted that the trial court erred in failing to sustain a challenge for cause to a certain proferred juror, who had served as a grand juror on the grand jury that indicted Wolfe, the accused. This was a valid ground for a challenge for cause, and upon the trial court's failure to sustain such valid challenge, Wolfe's attorney was caused to exercise one of his peremptory challenges, whereas he should have been relieved of the presence of such grand juror by means of his challenge for cause. Upon an exhaustion of his peremptory challenges, he was proferred a further juror whom he did not desire, and he requested the trial court to grant him a further peremptory challenge to take the place of the one taken from him in causing him to peremptorily challenge the ex-grand juror. Had he thus had restored to him this one peremptory challenge, he would not have taken the last juror who was forced upon him. We held that, since the court wrongfully took from him one peremptory challenge, he should have given back one peremptory challenge, and should not have required of the accused to show cause why such last juror was objectionable.
We do not mean to say that one who has been a justice of the peace, or a deputy sheriff, for that reason is subject to a challenge for cause; but we do mean to say, the previous service of a possible juror as an officer might have some weight with an accused when desiring to exercise a peremptory challenge, which is one for which no reason is necessary to be given.
We can merely reiterate that since the trial court wrongfully took away from this appellant one of his peremptory challenges, appellant was entitled to peremptorily challenge the last juror forced upon him over his objections. Appellant should have had returned to him the full thing taken away from him, not a part thereof only.
We did not intend to hold, and do not hold, that because a prospective juror has been a peace officer, that such disqualified *Page 265 him from sitting as a juror under the doctrine of a challenge for cause; but we do recognize that, where an accused is charged with the unlawful killing of a peace officer, doubtless the fact that a proferred juror had served as a peace officer might have some weight when accused is called upon to exercise a peremptory challenge on such offered juror. Therein comes the crux in the present case. Had the appellant not been improperly deprived of this one of his peremptory challenges, he could have relieved himself of the presence of this last juror forced upon him, who was objectionable, but not disqualified. Had the juror been released under a challenge for cause, this situation would not have arisen, but he was not subject to such a challenge; and had not the appellant been improperly deprived of one of his peremptory challenges, appellant would have been in a position to have caused such last juror to stand aside.
We think we were correct in our original opinion herein, and the motion of the State will therefore be overruled.
ON STATE'S MOTION FOR REHEARING.