Beardsley, J.
The facts upon which the questions of law reserved for our consideration in this case arise are contained in the finding of the Superior Court at its August term, 1878, and also the finding of that court at its March term, 1878, upon the motion of the prisoner to be discharged from custody, the allegations of which motion were found to be true, except so far as they were varied by the prior finding referred to.
Those facts are in substance as follows:—At said March term the accused was placed on trial before a jury legally impaneled and sworn, upon an indictment charging him with the crime of murder in the first degree. Each of the jurors before being accepted and sworn was examined in behalf of the state and the accused as to his qualifications as such juror. Upon the second day of the trial, and after witnesses had been examined in behalf of the state, the counsel for the accused stated to the court that they had been informed and believed that one of the jurors in the case was disqualified, for the reason that before being sworn as such juror he had expressed the opinion that the accused was guilty of the crime charged in the indictment, and asked the court to suspend the trial, and hear such witnesses as they were prepared to offer to prove such disqualification. The court suspended the trial, and heard the evidence offered in support of the charge, and thereupon, no evidence being offered by the state, the counsel [546]*546for the accused claimed that they had established by evidence the fact that the juror was so disqualified, and asked the court so to find and declare. Upon such evidence the court found as a fact that such juror had, before he was sworn, expressed an opinion that the accused was guilty of the crime wherewith he was charged, and was thereby disqualified to sit as a juror upon the trial of the case, and did so declare. Thereupon the counsel for the accused asked for time in which to consider what course they would adopt, and the court granted them until the opening of the court on the next day, when they offered to waive such disqualification, and proceed with the trial with such disqualified juror on the panel, or to accept the verdict of the eleven jurors on the panel exclusive of such disqualified juror.
The court refused to accept such waiver, or to proceed with the trial with eleven jurors.
It is claimed by counsel for the accused that these facts operate as a bar to his further prosecution, and that he is entitled to be discharged from custody.
In support of this claim they say, first, that the conclusion of the court that the juror was disqualified was unwarranted by the facts found, because, consistently with the finding, the opinion expressed by the juror may have been derived from such sources, or formed under such circumstances, as not to disqualify him within the doctrine of the cases referred to by them, and especially of the case of The State v. Wilson, 38 Conn. R., 126.
It would be a sufficient answer to this claim that this finding, both as to the facts and the law, was made at the request of the counsel for the accused. They charged that the juror ■was disqualified by reason of having expressed an opinion that the accused was guilty, and upon the evidence they asked •.the court so to find. If the finding was insufficient, they are not in a position to except to it.
Rut, aside from this, we have no doubt of the sufficiency of the finding. It is in the language of the rule of the common law applicable to challenges for favor, that “the juror having declared an opinion beforehand that the party is guilty, or [547]*547will be hanged, or the like, is a ground of challenge,” and the rule in this state is the same. State v. Potter, 18 Conn. R., 184; State v. Tuller, 34 Conn. R., 294.
In the case of The State v. Wilson, supra, it was indeed liolden that one who had received “ impressions ” as to the guilt of the accused, merely from hearing or reading reports of a homicide, was not ordinarily disqualified thereby from sitting as a juror upon the trial of such accused person, because his mind would not generally be so affected thereby as to disturb his impartiality as a juror. But this is hardly a departure from the letter of the rule of the common law which we have quoted. Such mental condition, so indefinite and unsettled as presumably not to influence the verdict of a juror, though styled in the ease referred to “opinions, impressions or suppositions,” scarcely deserves the name of an opinion; but if otherwise, the court sufficiently characterized the opinion in question by finding that it disqualified the juror who expressed it.
The juror in this case being thus disqualified, and the jury being discharged for that cause, was the accused thereby exempted from liability to further prosecution? In determining this question we have no occasion to enter upon the discussion of what constitutes “jeopardy of life,” or generally what exigency arising in the course of a capital trial will authorize the discharge of the juiy, nor to review the numerous cases bearing upon these questions which have been referred to by counsel, because we think that the court was justified in its action by the well-settled law of this state, as laid down in the case of State v. Tuller, before referred to. In that case there was a motion in arrest of judgment, upon the ground that a juror had before the trial expressed an opinion that the accused was guilty. The court refused to arrest the judgment, upon the ground that the fact of the expression of such opinion was known to counsel of the accused before the verdict, and they did not then inform the court of it, holding that by such omission they had waived what they sought to obtain by their motion in arrest, namely, a new trial before another jury, because the court would, if so informed and requested to do so, have discharged the jury [548]*548before verdict. Judge Butlee, in giving the opinion of the court says:—“The law is well settled that if a juror has formed and expressed an opinion that the prisoner is guilty of the crime charged prior to the trial, and that fact is unknown to the prisoner or his counsel until after verdict, the fact is good ground for arresting the judgment. That doctrine was recognized by this court in Smith v. Ward, 2 Root, 302, and by Judge Swift in the second volume of his Digest, page 415.” And again—“If he (the accused) knows of an objection to the panel before the verdict is rendered, and in time to prevent the verdict and obtain a rehearing before another jury, and does not avail himself of the opportunity, he must be holden to a waiver of the objection; otherwise he would be permitted to lie by and speculate upon the chances of a verdict, and this cannot be tolerated.” Upon the principles which governed the decision in that case the discharge of the jury was clearly warranted, if made at the request of the accused. The record shows that in effect it was so made.
We are to assume, as the court below must have assumed, that counsel in charging that the juror was disqualified, and moving the court to a trial of such charge, had a legitimate purpose in view, and the only object of that trial which we can recognize was the exclusion of the juror from the panel, if the court found that the charge was sustained by the evidence.
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Beardsley, J.
The facts upon which the questions of law reserved for our consideration in this case arise are contained in the finding of the Superior Court at its August term, 1878, and also the finding of that court at its March term, 1878, upon the motion of the prisoner to be discharged from custody, the allegations of which motion were found to be true, except so far as they were varied by the prior finding referred to.
Those facts are in substance as follows:—At said March term the accused was placed on trial before a jury legally impaneled and sworn, upon an indictment charging him with the crime of murder in the first degree. Each of the jurors before being accepted and sworn was examined in behalf of the state and the accused as to his qualifications as such juror. Upon the second day of the trial, and after witnesses had been examined in behalf of the state, the counsel for the accused stated to the court that they had been informed and believed that one of the jurors in the case was disqualified, for the reason that before being sworn as such juror he had expressed the opinion that the accused was guilty of the crime charged in the indictment, and asked the court to suspend the trial, and hear such witnesses as they were prepared to offer to prove such disqualification. The court suspended the trial, and heard the evidence offered in support of the charge, and thereupon, no evidence being offered by the state, the counsel [546]*546for the accused claimed that they had established by evidence the fact that the juror was so disqualified, and asked the court so to find and declare. Upon such evidence the court found as a fact that such juror had, before he was sworn, expressed an opinion that the accused was guilty of the crime wherewith he was charged, and was thereby disqualified to sit as a juror upon the trial of the case, and did so declare. Thereupon the counsel for the accused asked for time in which to consider what course they would adopt, and the court granted them until the opening of the court on the next day, when they offered to waive such disqualification, and proceed with the trial with such disqualified juror on the panel, or to accept the verdict of the eleven jurors on the panel exclusive of such disqualified juror.
The court refused to accept such waiver, or to proceed with the trial with eleven jurors.
It is claimed by counsel for the accused that these facts operate as a bar to his further prosecution, and that he is entitled to be discharged from custody.
In support of this claim they say, first, that the conclusion of the court that the juror was disqualified was unwarranted by the facts found, because, consistently with the finding, the opinion expressed by the juror may have been derived from such sources, or formed under such circumstances, as not to disqualify him within the doctrine of the cases referred to by them, and especially of the case of The State v. Wilson, 38 Conn. R., 126.
It would be a sufficient answer to this claim that this finding, both as to the facts and the law, was made at the request of the counsel for the accused. They charged that the juror ■was disqualified by reason of having expressed an opinion that the accused was guilty, and upon the evidence they asked •.the court so to find. If the finding was insufficient, they are not in a position to except to it.
Rut, aside from this, we have no doubt of the sufficiency of the finding. It is in the language of the rule of the common law applicable to challenges for favor, that “the juror having declared an opinion beforehand that the party is guilty, or [547]*547will be hanged, or the like, is a ground of challenge,” and the rule in this state is the same. State v. Potter, 18 Conn. R., 184; State v. Tuller, 34 Conn. R., 294.
In the case of The State v. Wilson, supra, it was indeed liolden that one who had received “ impressions ” as to the guilt of the accused, merely from hearing or reading reports of a homicide, was not ordinarily disqualified thereby from sitting as a juror upon the trial of such accused person, because his mind would not generally be so affected thereby as to disturb his impartiality as a juror. But this is hardly a departure from the letter of the rule of the common law which we have quoted. Such mental condition, so indefinite and unsettled as presumably not to influence the verdict of a juror, though styled in the ease referred to “opinions, impressions or suppositions,” scarcely deserves the name of an opinion; but if otherwise, the court sufficiently characterized the opinion in question by finding that it disqualified the juror who expressed it.
The juror in this case being thus disqualified, and the jury being discharged for that cause, was the accused thereby exempted from liability to further prosecution? In determining this question we have no occasion to enter upon the discussion of what constitutes “jeopardy of life,” or generally what exigency arising in the course of a capital trial will authorize the discharge of the juiy, nor to review the numerous cases bearing upon these questions which have been referred to by counsel, because we think that the court was justified in its action by the well-settled law of this state, as laid down in the case of State v. Tuller, before referred to. In that case there was a motion in arrest of judgment, upon the ground that a juror had before the trial expressed an opinion that the accused was guilty. The court refused to arrest the judgment, upon the ground that the fact of the expression of such opinion was known to counsel of the accused before the verdict, and they did not then inform the court of it, holding that by such omission they had waived what they sought to obtain by their motion in arrest, namely, a new trial before another jury, because the court would, if so informed and requested to do so, have discharged the jury [548]*548before verdict. Judge Butlee, in giving the opinion of the court says:—“The law is well settled that if a juror has formed and expressed an opinion that the prisoner is guilty of the crime charged prior to the trial, and that fact is unknown to the prisoner or his counsel until after verdict, the fact is good ground for arresting the judgment. That doctrine was recognized by this court in Smith v. Ward, 2 Root, 302, and by Judge Swift in the second volume of his Digest, page 415.” And again—“If he (the accused) knows of an objection to the panel before the verdict is rendered, and in time to prevent the verdict and obtain a rehearing before another jury, and does not avail himself of the opportunity, he must be holden to a waiver of the objection; otherwise he would be permitted to lie by and speculate upon the chances of a verdict, and this cannot be tolerated.” Upon the principles which governed the decision in that case the discharge of the jury was clearly warranted, if made at the request of the accused. The record shows that in effect it was so made.
We are to assume, as the court below must have assumed, that counsel in charging that the juror was disqualified, and moving the court to a trial of such charge, had a legitimate purpose in view, and the only object of that trial which we can recognize was the exclusion of the juror from the panel, if the court found that the charge was sustained by the evidence. Their request to the court after they had introduced their evidence, made presumably in the presence of the accused and with his acquiescence, to find and declare that the juror was disqualified, was in effect a motion to discharge the juror for that cause, and when the court did so find and declare, that declaration was in effect the fiat of the court that the juror should no longer sit upon the trial of the case. No other finding or declaration was required in order to sever his connection with the panel, and indeed any other would have been superfluous. By the operation of that finding and its announcement he ceased to be a juror, and the number of jurors on the panel was reduced to eleven.
Is this state of the case counsel for the accused offered to waive the disqualification of the juror, and proceed with the trial with him as one of the panel.
[549]*549The offer was too late. The court could not then be required to reinstate the discharged juror upon the panel. If they had any discretionary power to do so, they acted wisely in refusing to exercise it. A person situated as this juror would have been if restored to the panel, should not sit upon the trial of a capital case. His mind would almost necessarily be so preoccupied with a sense of his own situation, that a calm and disinterested consideration of the case could hardly be expected from him. He would regard himself as well as the accused as on trial, and his verdict would be quite as likely to be shaped by personal considerations and a desire to vindicate himself, as by the evidence and the law in the case.
Nothing remained for the court but to discharge the jury. The offer of the counsel for the accused to proceed with the trial with eleven jurors was not, so far as the record discloses, accepted by the state, and without such consent at least, eleven jurors could not have rendered a good verdict. Whether with such consent a good verdict could have been rendered in a capital case by less than a full panel, is a question which we are not called upon to decide.
The Superior Court is advised to dismiss the motion to discharge the accused from custody.
In this opinion the other judges concurred.
Judges Sanfokd and Beakdsi-ey of the Superior Court sat in the place of Judges Cabpenter and Pardee, who had sat upon the trial of the case to the jury.