Hill, J.
Defendant appeals from the judgment and sentence entered upon a jury verdict finding her guilty of violating the state Uniform Narcotic Drug Act.
Her claim for new trial is predicated upon a single assignment of error. She insists that the trial court should have granted her motion to excuse a challenged juror for cause.
When the prospective jurors were asked on voir dire if they were acquainted with the defendant or any of the attorneys in the case, Mr. Arthur L. Martin, one of the veniremen, responded:
Well, Your Honor, I am not really sure, but in a traffic accident that happened to me in October, a collection agency wanted to collect some damages to the trailer that was struck and I had to go to court and I was diverted to the wrong courtroom and I believe I sat in and heard some of the preliminary hearing involving this particular young lady. The Court: Involving Miss Parnell? The Juror: Yes. The Court: You have no personal acquaintance with her other than that? The Juror: No, no.
Defendant challenged venireman Martin for cause after the state had examined him on voir dire. She again challenged him for cause during the voir dire examination by her trial counsel, but the court denied the challenge on each of those occasions. Subsequently, defendant exercised her fourth peremptory challenge to excuse Mr. Martin as a juror.
The record then indicates that defendant, having used all of her peremptory challenges, asked the court for an additional peremptory challenge since she had been required [505]*505to use one against venireman Martin who she contended should have been excused for cause. The request was denied.
Mr. Martin’s presence at the preliminary hearing was no momentary or casual matter. He sat through the hearing and was “fairly attentive.” The testimony at such hearings takes a much wider range than at a trial, where the rules of evidence are more strictly enforced. Indeed, the defense at a preliminary hearing is interested in knowing the full extent of the state’s case, rather than trying to limit it, and there may be few or no objections to the state’s proffered testimony.
Although Mr. Martin denied getting “any impression” as a result of what he heard at the preliminary hearing his response to one of defense counsel’s questions was most revealing:
Question: [Gjenerally speaking we hope, of course, to have jurors that know little or nothing about the case. Knowing this and knowing that you sat in for two hours and that you heard the preliminary hearing, don’t you think that it might just be possible in the back of your mind somewhere you might think back to something you heard at that time? Don’t you think if you were sitting in her shoes you would rather excuse yourself and say, perhaps, for the interest of justice you should excuse yourself? Answer: I would say in the interest of justice I think it would be appropriate for me to stay where I 'am until I am dismissed on your peremptory, but I do not think I have any preconceived ideas about it because it was very vague and there was no rulings given. I just remember her.
The answer indicates a knowledgeable individual who obviously intends to force the defense to use one of its peremptory challenges to get rid of him. He succeeded, because no defense attorney under such circumstances would dare to leave the person making such an answer on the jury, no matter what he might say about having no preconceived opinion.
The state endeavors to equate the impression received from sitting through a preliminary hearing with the read[506]*506ing of newspaper accounts or hearing radio reports of the offense for which a defendant is placed on trial. We cannot agree. The setting and the purpose are entirely different. The witnesses testifying at a preliminary hearing are under oath and subject to the pains and penalties of perjury. Such testimony must of necessity make a different impression on an observer than would reading a newspaper or hearing a newscast.
Under the heading Juror’s presence at or participation in prior criminal proceedings involving the accused in 47 Am. Jur. 2d Jury § 273, p. 849 (1969) we find the following statement:
There is some authority that the mere presence at a prior trial of a criminal case or related hearing does not disqualify a juror in a subsequent criminal case involving the same defendant. According to some cases, however, a juror’s mere presence at a prior proceeding involving the same defendant will render that juror incompetent to serve, without any showing that the juror has formed an opinion regarding the guilt or innocence of the defendant.
(Footnotes omitted.)
As indicated in the quotation there is a split of authority on the proposition as to whether mere presence at a defendant’s preliminary hearing, or a related hearing, will ipso facto disqualify a prospective juror. The majority rule appears to be that it is usually a question for the trial judge to decide on the basis of whether there is actual prejudice or bias.1
It seems to us that there is much merit in the position taken by the Arkansas2 and Oklahoma3 courts, that the presence of a prospective juror at a preliminary hearing occurs so seldom and the chances of prejudicial impressions [507]*507are so great that there should be a conclusive presumption of prejudice.
Washington, like every other state, is committed to the proposition that the right to a trial by jury includes the right to an unbiased and unprejudiced jury, and that a trial by a jury, one or more of whose members is biased or prejudiced, is not a constitutional trial. Alexson v. Pierce County, 186 Wash. 188, 57 P.2d 318 (1936); or as was said by Mr. Justice Clark in Irvin v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961):
In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, “indifferent” jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. In re Oliver, 333 U. S. 257; Tumey v. Ohio, 273 U. S. 510. “A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U. S. 133, 136. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as “indifferent as he stands unswome.” Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U. S. 199. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr’s Trial 416 (1807). “The theory of the law is that a juror who has formed an opinion cannot be impartial.” Reynolds v. United States,
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Hill, J.
Defendant appeals from the judgment and sentence entered upon a jury verdict finding her guilty of violating the state Uniform Narcotic Drug Act.
Her claim for new trial is predicated upon a single assignment of error. She insists that the trial court should have granted her motion to excuse a challenged juror for cause.
When the prospective jurors were asked on voir dire if they were acquainted with the defendant or any of the attorneys in the case, Mr. Arthur L. Martin, one of the veniremen, responded:
Well, Your Honor, I am not really sure, but in a traffic accident that happened to me in October, a collection agency wanted to collect some damages to the trailer that was struck and I had to go to court and I was diverted to the wrong courtroom and I believe I sat in and heard some of the preliminary hearing involving this particular young lady. The Court: Involving Miss Parnell? The Juror: Yes. The Court: You have no personal acquaintance with her other than that? The Juror: No, no.
Defendant challenged venireman Martin for cause after the state had examined him on voir dire. She again challenged him for cause during the voir dire examination by her trial counsel, but the court denied the challenge on each of those occasions. Subsequently, defendant exercised her fourth peremptory challenge to excuse Mr. Martin as a juror.
The record then indicates that defendant, having used all of her peremptory challenges, asked the court for an additional peremptory challenge since she had been required [505]*505to use one against venireman Martin who she contended should have been excused for cause. The request was denied.
Mr. Martin’s presence at the preliminary hearing was no momentary or casual matter. He sat through the hearing and was “fairly attentive.” The testimony at such hearings takes a much wider range than at a trial, where the rules of evidence are more strictly enforced. Indeed, the defense at a preliminary hearing is interested in knowing the full extent of the state’s case, rather than trying to limit it, and there may be few or no objections to the state’s proffered testimony.
Although Mr. Martin denied getting “any impression” as a result of what he heard at the preliminary hearing his response to one of defense counsel’s questions was most revealing:
Question: [Gjenerally speaking we hope, of course, to have jurors that know little or nothing about the case. Knowing this and knowing that you sat in for two hours and that you heard the preliminary hearing, don’t you think that it might just be possible in the back of your mind somewhere you might think back to something you heard at that time? Don’t you think if you were sitting in her shoes you would rather excuse yourself and say, perhaps, for the interest of justice you should excuse yourself? Answer: I would say in the interest of justice I think it would be appropriate for me to stay where I 'am until I am dismissed on your peremptory, but I do not think I have any preconceived ideas about it because it was very vague and there was no rulings given. I just remember her.
The answer indicates a knowledgeable individual who obviously intends to force the defense to use one of its peremptory challenges to get rid of him. He succeeded, because no defense attorney under such circumstances would dare to leave the person making such an answer on the jury, no matter what he might say about having no preconceived opinion.
The state endeavors to equate the impression received from sitting through a preliminary hearing with the read[506]*506ing of newspaper accounts or hearing radio reports of the offense for which a defendant is placed on trial. We cannot agree. The setting and the purpose are entirely different. The witnesses testifying at a preliminary hearing are under oath and subject to the pains and penalties of perjury. Such testimony must of necessity make a different impression on an observer than would reading a newspaper or hearing a newscast.
Under the heading Juror’s presence at or participation in prior criminal proceedings involving the accused in 47 Am. Jur. 2d Jury § 273, p. 849 (1969) we find the following statement:
There is some authority that the mere presence at a prior trial of a criminal case or related hearing does not disqualify a juror in a subsequent criminal case involving the same defendant. According to some cases, however, a juror’s mere presence at a prior proceeding involving the same defendant will render that juror incompetent to serve, without any showing that the juror has formed an opinion regarding the guilt or innocence of the defendant.
(Footnotes omitted.)
As indicated in the quotation there is a split of authority on the proposition as to whether mere presence at a defendant’s preliminary hearing, or a related hearing, will ipso facto disqualify a prospective juror. The majority rule appears to be that it is usually a question for the trial judge to decide on the basis of whether there is actual prejudice or bias.1
It seems to us that there is much merit in the position taken by the Arkansas2 and Oklahoma3 courts, that the presence of a prospective juror at a preliminary hearing occurs so seldom and the chances of prejudicial impressions [507]*507are so great that there should be a conclusive presumption of prejudice.
Washington, like every other state, is committed to the proposition that the right to a trial by jury includes the right to an unbiased and unprejudiced jury, and that a trial by a jury, one or more of whose members is biased or prejudiced, is not a constitutional trial. Alexson v. Pierce County, 186 Wash. 188, 57 P.2d 318 (1936); or as was said by Mr. Justice Clark in Irvin v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961):
In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, “indifferent” jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. In re Oliver, 333 U. S. 257; Tumey v. Ohio, 273 U. S. 510. “A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U. S. 133, 136. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as “indifferent as he stands unswome.” Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U. S. 199. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr’s Trial 416 (1807). “The theory of the law is that a juror who has formed an opinion cannot be impartial.” Reynolds v. United States, 98 U. S. 145, 155.
(Footnote omitted.)
Our statute pertaining to the challenging of prospective jurors in criminal actions, RCW 10.49.040, provides that:
Challenges for cause shall be allowed for such cause as the court may, in its discretion, deem sufficient, having reference to the causes of challenge prescribed in civil cases, as far as they may be applicable, and to the substantial rights of the defendant.
(Italics ours.)
As indicated, it is our view that Mr. Martin’s presence throughout the defendant’s prehminary hearing was in it[508]*508self sufficient to disqualify him as a juror, but when coupled with his obviously hostile answer heretofore quoted, it seems clear to us that he should have been excused for cause.
Any error involved in failing to grant the defendant’s challenge for cause against venireman Martin was not obviated by the fact that he did not sit on the jury. To remove him from the panel required the exercise of one of the defendant’s six peremptory challenges. All of her peremptory challenges were eventually used, and she requested an additional peremptory to replace the one used on venireman Martin. This was denied. In State v. Stentz, 30 Wash. 134, 70 P. 241, 63 L.R.A. 807 (1902), we held:
A refusal to sustain challenges for proper cause, necessitating peremptory challenges on the part of the accused, will be considered on appeal as prejudicial where the accused has been compelled subsequently to exhaust all his peremptory challenges before the final selection of the jury.
We had earlier applied the same rule in State v. Rutten, 13 Wash. 203, 43 P. 30 (1895) and later recognized its propriety in State v. Patterson, 183 Wash. 239, 48 P.2d 193 (1935).
The conviction and sentence appealed from are set aside and the defendant is granted a new trial.
This may seem to be no more than a delaying gesture, but more important than speedy justice is the recognition that every defendant is entitled to a fair trial before 12 unprejudiced and unbiased jurors. Not only should there be a fair trial, but there should be no lingering doubt about it. It should be noted that defendant was represented on this appeal by court appointed counsel who have ably presented both written and oral arguments to the court.
Hunter, C. J., Rosellini, Hale, and Neill, JJ., concur.