SLOAN, J.
The defendant was indicted, tried, and convicted in the district court of Yavapai County for the crime of murder. His motion for a new trial having been overruled, defendant appeals to this court. Numerous errors are assigned, the more important of which we will consider.
A challenge was interposed by the defendant to the panel of grand jurors which found the indictment upon.which the defendant was tried, upon the ground that the jurors were not drawn from the regular jury list on file with the clerk, but were summoned by an order of the court, on application of the district attorney, from the body of the county. The record discloses that at the opening of the court a grand jury was in attendance, which, by the order of the judge duly made and entered, had been drawn and summoned as provided by paragraphs 2184 and 2185, inclusive, of the Revised Statutes. Said grand jury, after serving as such, was discharged by order of the court. Subsequently, and during the term, another grand jury was summoned on an open venire, impaneled, and charged by the court. The indictment on which the defendant was tried and convicted was found by this special grand jury. The contention of the .defendant is, that the latter grand jury was illegal, for the reason that the court had no power to order a grand jury otherwise than is provided in said paragraph 2184 of the Revised Statutes. We are Unable to interpret the statutes as limiting the power of the court in calling a grand jury to the one mode provided in said paragraph. At common law, a court possesses the power of directing the summoning of a grand jury upon an open venire whenever, in the discretion of the court, it be found necessary. The statutes ought not, .therefore, unless the legislative intention appears otherwise, to be so construed as to deprive the court of this power. Mackey v. People, 2 Colo. 13; Levy v. Wilson, 69 Cal. 105, 10 Pac. 272 ; Wilson v. State, 32 Tex. 112; White v. People, 81 III. 333; State v. Marsh, 13 Kan. 596. Paragraph 2184 provides that the judge “may, in his [7] discretion, order drawn a grand jury from the regular list.” Again, paragraph 2196 provides that “where jurors are not drawn and summoned in the manner hereinbefore prescribed to attend any district court, or a sufficient number fail to appear, such court may, in its discretion, order a sufficient number to be drawn forthwith and summoned to attend said court; or it may, by an order entered on its minutes, direct the sheriff of the county forthwith to summon as many good and lawful men of his county to serve as grand or trial jurors as the case may require.” We think it plain from the foregoing provision of the statute that it is left to the discretion of the court either to order a grand jury to be drawn from the regular grand jury list or to be summoned upon an open venire from the body of the county, as was done by the court in this case.
As to the challenge interposed by the defendant to the juror Bowder, we think, from the answers of the witness, given upon his examination on voir dire, that the challenge was well taken, and that he should have been excluded from the jury. The record, however, discloses that the juror was excused at some time before the jury was sworn, but whether by the defendant or the territory does not appear. Before we could find this ruling of the court to have been reversible error the record should disclose that the defendant exhausted his peremptory challenges upon the panel, and that he was compelled to exercise one of them upon the objectionable juror, otherwise it must be presumed that the defendant was not injured by the ruling of the court.
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SLOAN, J.
The defendant was indicted, tried, and convicted in the district court of Yavapai County for the crime of murder. His motion for a new trial having been overruled, defendant appeals to this court. Numerous errors are assigned, the more important of which we will consider.
A challenge was interposed by the defendant to the panel of grand jurors which found the indictment upon.which the defendant was tried, upon the ground that the jurors were not drawn from the regular jury list on file with the clerk, but were summoned by an order of the court, on application of the district attorney, from the body of the county. The record discloses that at the opening of the court a grand jury was in attendance, which, by the order of the judge duly made and entered, had been drawn and summoned as provided by paragraphs 2184 and 2185, inclusive, of the Revised Statutes. Said grand jury, after serving as such, was discharged by order of the court. Subsequently, and during the term, another grand jury was summoned on an open venire, impaneled, and charged by the court. The indictment on which the defendant was tried and convicted was found by this special grand jury. The contention of the .defendant is, that the latter grand jury was illegal, for the reason that the court had no power to order a grand jury otherwise than is provided in said paragraph 2184 of the Revised Statutes. We are Unable to interpret the statutes as limiting the power of the court in calling a grand jury to the one mode provided in said paragraph. At common law, a court possesses the power of directing the summoning of a grand jury upon an open venire whenever, in the discretion of the court, it be found necessary. The statutes ought not, .therefore, unless the legislative intention appears otherwise, to be so construed as to deprive the court of this power. Mackey v. People, 2 Colo. 13; Levy v. Wilson, 69 Cal. 105, 10 Pac. 272 ; Wilson v. State, 32 Tex. 112; White v. People, 81 III. 333; State v. Marsh, 13 Kan. 596. Paragraph 2184 provides that the judge “may, in his [7] discretion, order drawn a grand jury from the regular list.” Again, paragraph 2196 provides that “where jurors are not drawn and summoned in the manner hereinbefore prescribed to attend any district court, or a sufficient number fail to appear, such court may, in its discretion, order a sufficient number to be drawn forthwith and summoned to attend said court; or it may, by an order entered on its minutes, direct the sheriff of the county forthwith to summon as many good and lawful men of his county to serve as grand or trial jurors as the case may require.” We think it plain from the foregoing provision of the statute that it is left to the discretion of the court either to order a grand jury to be drawn from the regular grand jury list or to be summoned upon an open venire from the body of the county, as was done by the court in this case.
As to the challenge interposed by the defendant to the juror Bowder, we think, from the answers of the witness, given upon his examination on voir dire, that the challenge was well taken, and that he should have been excluded from the jury. The record, however, discloses that the juror was excused at some time before the jury was sworn, but whether by the defendant or the territory does not appear. Before we could find this ruling of the court to have been reversible error the record should disclose that the defendant exhausted his peremptory challenges upon the panel, and that he was compelled to exercise one of them upon the objectionable juror, otherwise it must be presumed that the defendant was not injured by the ruling of the court.
One of the grounds upon which the defendant relied in his motion for a new trial was the disqualification of one of the jurors, which did not appear until after the trial. In support of his motion defendant.produced and read the affidavit of one Charles Bennett to the following effect: That some time prior to the trial of the defendant he, Bennett, had a conversation with the juror Martin Crouse in relation to the charge against the defendant, to wit, the billing of George Johnson, in Prescott, in October, 1890. That in said conversation the said Crouse used the following language in substance, to wit: “That there are so many married men whose wives are loose characters, and single men will get around them, and get the best of them, and their husbands will make [8] gun-plays,” and that he did not. believe in it; and from what he had heard and read about the ease he was satisfied that John Chartz was guilty of having done said killing. The defendant also made affidavit that the facts stated by Bennett were unknown to him, and were not communicated to him by said Bennett, or by any one, prior to the trial, nor until after said affidavit was made by saic Bennett. No other affidavit was filed, or other proof taken, as to the proof of the fact alleged by Bennett. The records disclose that the juror Crouse was examined upon voii dire, and gave the following answers to the questions put i;o him: ‘‘Question. Do you know defendant?—Answer. Yes, sir.—Q. Did you know George Johnson?—A. Yes, sir.—Q. Have you heard the facts, or what purports to be the facte, of this case?—A. No, sir.— Q. Have you formed or expressed any opinion as to the guilt or innocence of the defendant?—A. I have formed an opinion. —Q. From what you have heard?—A. Yes, sir.—Q. What kind of an opinion is that? Is it qualified or unqualified?— A. Qualified.—Q. Is it a fixed opinion?—A. No, sir.—Q. Is it such an opinion as would influ nice or control you in making up a verdict in this case?—A. No, sir.—Q. Could you render your verdict in accordance with the law and the evidence without any regard to that op uion you have formed?—A. Yes, sir.—Q. You live on Cherry Creek?—A. Turkey Creek. —Q. You were not in town at ihe time that this occurrence took place?—A. No, sir.—Q. Were you at any of the trials? —A. No. sir.—Q. Have you any bias or prejudice against this defendant ?—A. No, sir.—Q. Do you know of any reason that would bias or prejudice you or disqualify you in any way for this trial of this cause?—A. No, sir.” If the facts as stated by Bennett be true (and it is to be observed that they were not denied), then Crouse was wholly unfit to serve as a juror in this case; and had this appeared upon his examination, the court no doubt would have excluded him from the jury. As seen by his answers, nothing in his examination appeared which indicated the true state of the juror’s mind, and which was calculated to lead either the court or the defendant to believe that he was other than an impartial juror. There can be no question but that the law favors the granting a new trial when it clearly appears that one of the jurors was disqualified by reason of bias or prejudice, and the fact of his disqualification [9] was not known until after the trial. Indeed, the authorities are unanimous that it is the duty of the court to grant a new trial in such a case, especially when the juror may have been examined as to his qualification, and failed to disclose the fact which disqualified him. People v. Plummer, 9 Cal. 310; State v. Burnside, 37 Mo. 347; Busick v. State, 19 Ohio, 198. Our statute, while not especially mentioning the disqualification of a trial juror as a ground for a new trial, is broad enough to include a case of this character. Section 1759 of the Penal Code, after enumerating the various causes for which a new trial may be granted, provides, in addition, for a case “where any good cause exists other than those in this section enumerated.” We are strongly of the opinion that the existence of the state of mind on the part of the juror Crouse entertained prior to the trial towards the defendant, and his unqualified expression of his belief in the defendant’s guilt, as disclosed by the affidavit of Bennett, is good cause, within the meaning of the statute. Quoting the language of the court in People v. Plummer, 9 Cal. 310: “One of the dearest rights guaranteed by our free constitution is that of trial by jury,—the right which every citizen has to demand that all offenses charged against him shall be submitted to a tribunal composed of honest and unprejudiced men, who will do equal and exact justice between the government and the accused, and, in order to do this, scan impartially every fact disclosed by the evidence.” This guaranty, being regarded as of inestimable value, would be entirely worthless if persons are to be admitted in the jury-box who are influenced by passion, ill-will, or prejudice, or who, by reason of having formed an opinion as to the merits of the case, will be incapable of judging with impartiality. We hold, therefore, the showing sufficient to have entitled the defendant upon this ground alone to a new trial.
We deem it unnecessary to consider such of the assignments of error as relate to the conduct of the trial, the admission of evidence, and the giving or refusing of instructions, for the reason that, if any error was committed, it will doubtless be corrected by the learned judge who tries the case at the next trial of the cause. Judgment reversed, and the cause remanded for a new trial.
Gooding, C. J., and Kibbey, J., concur.