Bobbitt, J.
Appellant was convicted of murder in the first degree under Acts 1941, ch. 148, §1, p. 447, being §10-3401, Burns’ 1956 Replacement, tried by jury, found guilty as charged and sentenced to death by electrocution.
The sole question here presented concerns the fact that one juror, Alice Leoma Harvey, failed on the voir dire examination to disclose that she was a second cousin of the victim named in the indictment.
The undisputed evidence is that neither appellant nor his attorney knew of such relationship until “about a week before he filed a motion for a new trial.” There was no consent by the parties that this juror could serve.
Appellant asserts (1) that regardless of the juror’s knowledge of such relationship under the factual situation here she was disqualfied, and he was entitled to a new trial because of such disqualification, and (2) that her failure to disclose her relationship to the victim constituted misconduct which is cause for a new trial under Acts 1905, ch. 169, §282, p. 584, being §9-1903, Burns’ 1956 Replacement.
First: “The construction of all statutes of this state shall be by the following rules, unless such construction be plainly repugnant to the intent of the legislature or of the context of the same statute:
“Eleventh. When a person is required to be disinterested or indifferent in acting on any question or matter affecting other parties, consanguinity or affinity within the sixth degree, inclusive, by the civil law rules, or within the degree of second cousin, inclusive, shall be deemed to disqualify such person from acting, except by consent of parties.” [80]*802 R. S. 1852, ch. 17, §1, p. 339, being §1-201, Burns’ 1946 Replacement.
It is asserted here that because appellant did not ask this juror specifically whether or not she was related to the victim the question was waived. Failure to challenge, without notice of the incompetency, does not constitute a waiver under this section of the statute.
On the voir dire examination, Mrs. Harvey was asked by the prosecuting attorney:
“Q. Did you know the other person involved in this incident, Vida Mae Foxworthy?
“A. No sir.
“Q. Do you know at this time, Mrs. Harvey, any reason why you could not sit on this jury, if called upon to do so, and render a fair and impartial verdict from the facts that were given you?
“A. There is none I know of.
[A similar question was also asked by counsel for defendant-appellant, with like answer.]
“Q. Mrs. Harvey, have you in the past read anything about this case?
“A. To my knowledge, when this case first—when this first happened, I recall reading an account in the paper.
“Q. You just read it as a passing news item?
“A. Yes.”
Mrs. Harvey was questioned by appellant’s attorney as follows:
“Q. You did not know the victim in this case?
“A. No.
“Q. Did you by any chance know the family?
“A. No, Sir.
“Q. And you are not personally acquainted or by
[81]*81acquaintance familiar with any of the persons in this action?
“A. No.”
Where, as here, the Legislature has, within the limits of their power, declared who shall not be competent as jurors, it is binding upon the courts. Block v. The State (1885), 100 Ind. 357, 361, 362. In Hudspeth et al. v. Herston (1878), 64 Ind. 133, 134, the trial court, before the jury was sworn to decide the case, asked the following question:
“Are either of you related, by blood or marriage, to either of the parties to this suit?”
One juror—Lewis A. Baker—answered in the negative. It developed after the jury had returned a verdict, that Baker was related to the appellee within the degree prohibited by statute.1 Baker, in an affidavit, stated that when he was examined on voir dire, he did not know that he was related to the appellee but such fact had since come to his knowledge. At pages 135,136 of 64 Ind. this court said:
“It can not be said, we think, under the facts shown by the affidavits in this case, that the appellants consented to the trial of this action by a cousin of the appellee, when they did not know of such relationship until after the trial. Nor can it be correctly said, that the appellants have waived the objection to the juror, on account of his relationship to the appellee, because they did not, personally or by their counsel, examine the juror on his oath as to his relationship to the appellee. We are clearly of the opinion, that, as to this matter, the appellants had the right to rely implicitly, without any further examination, upon the answer of the juror to the question propounded to him by the court.
[82]*82“It seems to us, also, that the fact alleged by the juror in his affidavit, that, at the time of the trial, he was wholly ignorant of any relationship between him and the appellee, can have no possible bearing on the correct decision of the question now under consideration. The appellants had a clear legal right to have their case tried by a disinterested jury. Under the law, the juror, Baker, was not a competent juror; but, without fault or negligence on the part of the appellants, and in ignorance of his incompetency, they accepted him as a juror. As soon as they were informed of the juror’s incompetency, the appellants moved the court, on that ground, for a new trial of this cause, but the motion was overruled.”
It seems to us that this is exactly the situation in the case at bar and nothing has been shown by the State which would cause us to change the rule so ably stated in Hudspeth et al. v. Herston, supra.
We recognize that the Herston Case was a civil action, but, if the rule therein stated applies when only property rights are involved, certainly it should apply with intensified force when a man’s life is at stake.
In our opinion this juror was wholly disqualified under the statute1 to sit as a member of the jury which tried appellant.
Second: The evidence at the hearing on the motion for a new trial discloses that the juror, Alice Leoma Harvey, was present a short time prior to the trial of appellant in the home of her grandmother, Jane Riley Barker, who was an aunt of the victim, Vida Mae Fox-worthy, when Mrs. Barker’s obituary was prepared. The person who wrote the obituary testified, in pertinent part, as follows:
“Q. I believe you stated that in making preparation of that obituary, that the relation of the family was discussed?
“A. Well, yes, when you write an obituary—.
[83]*83“Q. Yes?
“A. Yes, we discussed that.
“Q. And I believe you stated your mother, Mrs.
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Bobbitt, J.
Appellant was convicted of murder in the first degree under Acts 1941, ch. 148, §1, p. 447, being §10-3401, Burns’ 1956 Replacement, tried by jury, found guilty as charged and sentenced to death by electrocution.
The sole question here presented concerns the fact that one juror, Alice Leoma Harvey, failed on the voir dire examination to disclose that she was a second cousin of the victim named in the indictment.
The undisputed evidence is that neither appellant nor his attorney knew of such relationship until “about a week before he filed a motion for a new trial.” There was no consent by the parties that this juror could serve.
Appellant asserts (1) that regardless of the juror’s knowledge of such relationship under the factual situation here she was disqualfied, and he was entitled to a new trial because of such disqualification, and (2) that her failure to disclose her relationship to the victim constituted misconduct which is cause for a new trial under Acts 1905, ch. 169, §282, p. 584, being §9-1903, Burns’ 1956 Replacement.
First: “The construction of all statutes of this state shall be by the following rules, unless such construction be plainly repugnant to the intent of the legislature or of the context of the same statute:
“Eleventh. When a person is required to be disinterested or indifferent in acting on any question or matter affecting other parties, consanguinity or affinity within the sixth degree, inclusive, by the civil law rules, or within the degree of second cousin, inclusive, shall be deemed to disqualify such person from acting, except by consent of parties.” [80]*802 R. S. 1852, ch. 17, §1, p. 339, being §1-201, Burns’ 1946 Replacement.
It is asserted here that because appellant did not ask this juror specifically whether or not she was related to the victim the question was waived. Failure to challenge, without notice of the incompetency, does not constitute a waiver under this section of the statute.
On the voir dire examination, Mrs. Harvey was asked by the prosecuting attorney:
“Q. Did you know the other person involved in this incident, Vida Mae Foxworthy?
“A. No sir.
“Q. Do you know at this time, Mrs. Harvey, any reason why you could not sit on this jury, if called upon to do so, and render a fair and impartial verdict from the facts that were given you?
“A. There is none I know of.
[A similar question was also asked by counsel for defendant-appellant, with like answer.]
“Q. Mrs. Harvey, have you in the past read anything about this case?
“A. To my knowledge, when this case first—when this first happened, I recall reading an account in the paper.
“Q. You just read it as a passing news item?
“A. Yes.”
Mrs. Harvey was questioned by appellant’s attorney as follows:
“Q. You did not know the victim in this case?
“A. No.
“Q. Did you by any chance know the family?
“A. No, Sir.
“Q. And you are not personally acquainted or by
[81]*81acquaintance familiar with any of the persons in this action?
“A. No.”
Where, as here, the Legislature has, within the limits of their power, declared who shall not be competent as jurors, it is binding upon the courts. Block v. The State (1885), 100 Ind. 357, 361, 362. In Hudspeth et al. v. Herston (1878), 64 Ind. 133, 134, the trial court, before the jury was sworn to decide the case, asked the following question:
“Are either of you related, by blood or marriage, to either of the parties to this suit?”
One juror—Lewis A. Baker—answered in the negative. It developed after the jury had returned a verdict, that Baker was related to the appellee within the degree prohibited by statute.1 Baker, in an affidavit, stated that when he was examined on voir dire, he did not know that he was related to the appellee but such fact had since come to his knowledge. At pages 135,136 of 64 Ind. this court said:
“It can not be said, we think, under the facts shown by the affidavits in this case, that the appellants consented to the trial of this action by a cousin of the appellee, when they did not know of such relationship until after the trial. Nor can it be correctly said, that the appellants have waived the objection to the juror, on account of his relationship to the appellee, because they did not, personally or by their counsel, examine the juror on his oath as to his relationship to the appellee. We are clearly of the opinion, that, as to this matter, the appellants had the right to rely implicitly, without any further examination, upon the answer of the juror to the question propounded to him by the court.
[82]*82“It seems to us, also, that the fact alleged by the juror in his affidavit, that, at the time of the trial, he was wholly ignorant of any relationship between him and the appellee, can have no possible bearing on the correct decision of the question now under consideration. The appellants had a clear legal right to have their case tried by a disinterested jury. Under the law, the juror, Baker, was not a competent juror; but, without fault or negligence on the part of the appellants, and in ignorance of his incompetency, they accepted him as a juror. As soon as they were informed of the juror’s incompetency, the appellants moved the court, on that ground, for a new trial of this cause, but the motion was overruled.”
It seems to us that this is exactly the situation in the case at bar and nothing has been shown by the State which would cause us to change the rule so ably stated in Hudspeth et al. v. Herston, supra.
We recognize that the Herston Case was a civil action, but, if the rule therein stated applies when only property rights are involved, certainly it should apply with intensified force when a man’s life is at stake.
In our opinion this juror was wholly disqualified under the statute1 to sit as a member of the jury which tried appellant.
Second: The evidence at the hearing on the motion for a new trial discloses that the juror, Alice Leoma Harvey, was present a short time prior to the trial of appellant in the home of her grandmother, Jane Riley Barker, who was an aunt of the victim, Vida Mae Fox-worthy, when Mrs. Barker’s obituary was prepared. The person who wrote the obituary testified, in pertinent part, as follows:
“Q. I believe you stated that in making preparation of that obituary, that the relation of the family was discussed?
“A. Well, yes, when you write an obituary—.
[83]*83“Q. Yes?
“A. Yes, we discussed that.
“Q. And I believe you stated your mother, Mrs. Clark and Mrs. Harvey and yourself were present?
“A. That is right.
“Q. And in the naming of this here relationship of Mrs. Jane Barker, was any mention made of Vida Mae Foxworthy?
“A. Yes, we talked and wondered if she would be at the funeral. And we talked about everybody in a social visit.
“Q. And that was in the presence of your mother, Mrs. Clark, Mrs. Harvey and yourself?
“A. Yes, sir, just a family discussion, that is right.
“Q. But as to the best of your recollection at the time Alice Harvey was in the kitchen in your presence, the name of Vida Mae Foxworthy was mentioned?
“A. Yes, Sir, it was.
(Re-direct examination by the court.)
“Q. Just what was the conversation at that time? Can you relate it in substance, Mrs. Wyde?
“A. Well, we were talking and wondering—
“Q. Who?
“A. Mrs. Clark, Mrs. Harvey and my mother were talking, others were going in and out. We were talking about this obituary and wondered if Wayne Babb had got word. Wayne was a cousin of mine. He lived at a distance. And we wondered if Vida would be to the funeral. You know how a family discussion is, if they would be present. It just lasted a few minutes.”
This witness further testified that she and the juror— Harvey’s mother, visited appellant’s trial; that she spoke to the juror Mrs. Harvey, and saw her “in the jury box.”
[84]*84Alice Leoma Harvey, the juror, testified at the hearing, in part, as follows:
“Q. And when you read the matter of the death of Yida Mae Foxworthy in the newspaper, that did not bring to mind anything of a relationship?
“A. No, Sir, to me it was just another news item.
“Q. And did you or did you not discuss the matter of the news item with your parents?
“A. I did not.
"Q. Did you at any time inform them you was a member of this jury?
“A. I did.
“Q. At what time in relation to the time the trial was going on?
“A. After the trial started. It was when they were selecting jury; when I was called to be selected, because I left baby with my mother the day I come up.
“Q. That is just when they were selecting the jury?
“A. Yes, Sir.
“Q. Do you know whether or not your mother was here in the court room during the trial?
“A. She was not.
On cross-examination, in answer to questions by Keith E. Barnhart, Attorney for defendant, the witness testified as follows:
“Q. You did inform your mother you were sitting as a juror on this case?
“A. Yes, I did.
“Q. And in fact you left your child there and explained to her why you were leaving the child ?
“A. The first day is the only time.
“Q. That was before the trial started?
“A. Yes, that was first day I was up here.
“Q. And you did not discuss this case with anyone during the trial ?
“A. No, Sir, I did not.” .
[85]*85In Block v. The State, supra (1885), 100 Ind. 357, the judgment was reversed because one of the jurors was incompetent and this fact did not come to the knowledge of the appellant until after the trial.
In Rhodes v. The State (1891), 128 Ind. 189, 27 N. E. 866, 25 Am. St. Rep. 429, after the trial, one of the jurors made affidavit that his eyesight was so defective that he could not distinguish one of the witnesses from another, or see the face of the defendant. In reversing the judgment, this court, at page 197, said:
“The accused was not negligent, for he, by his counsel, fully examined the jurors as to their qualifications. The answers of the juror of whom we are speaking were such as to disarm suspicion of his disqualification, and there was nothing to indicate that his eyesight was defective.”
In Gaff v. The State (1900), 155 Ind. 277, 58 N. E. 74, 80 Am. St. Rep. 235, it was discovered, after trial and conviction, that two of the jurors were deputy sheriffs. In reversing the judgment this court, at pages 278-279, said:
“These deputy sheriffs would doubtless have been rejected by the court on challenge for cause if the facts had been made known. Appellant was not bound to anticipate that talesmen would be called from among the sheriff’s deputies, and these men should have disclosed the relationship on the general examination as to their competency. Block v. State 100 Ind. 357; Rhodes v. State, 128 Ind. 189, [27 N. E. 866], 25 Am. St. 429.”
The reasons for a voir dire examination of jurors and their duty in response thereto are ably stated in Pearcy v. The Michigan Mutual Life Insurance Company (1887), 111 Ind. 59, at pages 61, 62, 12 N. E. 98, 60 Am. St. Rep. 673, as follows:
[86]*86“The examination of a juror on his voir dire has a two-fold purpose, namely, to ascertain whether a cause for challenge exists, and to ascertain whether it is wise and expedient to exercise the right of peremptory challenge given to parties by the law. It is often important that a party should know the relation sustained by a person called as a juror to his adversary, in order that he may interpose a challenge for cause, or exercise his peremptory right to challenge. It is the duty of a juror to make full and truthful answers to such questions as are asked him, neither falsely stating any fact nor concealing any material matter, since full knowledge of all material and relevant matters is essential to a fair and just exercise of the right to challenge either peremptorily or for cause. A juror who falsely misrepresents his interest or situation, or conceals a material fact relevant to the controversy, is guilty of misconduct, and such misconduct is prejudicial to the party, for it impairs his right to challenge.”
In Foreman v. State (1932), 203 Ind. 324, 180 N. E. 291, a juror on voir dire examination answered “No” to the question: “Do you know Charles Rickert, .the janitor of the German Reformed Church on- the south side?” It appears that the appellant was attempting to obtain a jury who were not acquainted with' the prosecuting witness Charles Rickert. The juror’s-'answer to the question propounded to him was accepted as correct and truthful, and appellant knew nothing to the contrary until after the jury had returned its verdict. The appellant had not used more than five peremptory challenges, and asserted thát had the juror answered the question truthfully, he would have exercised his right of a peremptory challenge. The juror admitted that at the time he answered the question “he did know that a person by the name of Rickert was employed as janitor at the German Reformed Church in Huntington, Indiana, but did not know him as Charles [87]*87Rickert, and had no personal acquaintance with him; that he had seen Rickert about the church at times when he passed the church going from his home to the business part of the city of Huntington; that his first knowledge of Riekert’s given name was after affiant was selected as a juror and Rickert appeared as a witness; that he did not give the testimony of this witness undue credence but considered it along with all of the other evidence and ‘gave it such weight as he thought it was entitled to.’ ” At page 330 of 203 Ind., this court said:
“. . . a juror’s failure to make full and truthful answers to questions asked him on his voir dire examination concerning his relation to the parties litigant or to others directly or indirectly interested in the outcome of the litigation, is misconduct, and will be regarded as prejudicial for the reason it impairs the parties right to challenge.” Citing authorities.
It has been repeatedly held by this court that if the general question on the voir dire examination “fairly arouses the juror’s attention and directs it to the information desired, it is enough without specific questions covering minute phases of the subject.” Pearcy v. The Michigan Mutual Life Insurance Company, supra (1887), 111 Ind. 59, 62, 12 N. E. 98, 60 Am. St. Rep. 673.
The defendant-appellant was not guilty of any negligence in not discovering sooner the fact of the juror’s relationship to the victim.
Appellant had the right to presume that Mrs. Harvey was a competent juror, and he was under no obligation to anticipate possible objections unless he had notice or some reason to suppose that such existed. Rice v. The State (1861), 16 Ind. 298, 300.
[88]*88Appellant being told by the juror that she did not know the victim in the case; that she did not know the family; and by answer to a question by the prosecuting attorney, that she knew of no reason why she could not sit on the jury, and render a fair and impartial verdict, he was not required to go further and ask specifically if she were related to the victim within the fifth degree, as prohibited by statute.
If Mrs. Harvey knew of her relationship to the victim at the time she reported for jury duty, and when she was asked if she knew the family of the victim, she should have come forward at that time with the information concerning such relationship.
When Mrs. Harvey was asked on the voir dire examination if she knew of any reason why she could not sit as a juror, it was her duty to state her relationship to the victim and, failing to do so, appellant had a right to rely upon her answer that there was none.
In our opinion the juror—Alice Leoma Harvey— was guilty of misconduct which was prejudicial to the appellant because it deprived him of his right to challenge for cause.
For the foregoing reasons the judgment must be reversed.
Judgment reversed with instructions to the trial court to grant appellant’s motion for a new trial.
Landis, C. J., and Emmert, J., concur.
Achor, J., concurs with separate opinion.
Arterburn, J., concurs in result with separate opinion.