The opinion
Mr. Justice Watts
(dissenting) : The appellant was tried at May term of Court for Orangeburg County, 1921, before Judge Bowman and a jury, charged with the murder
*543
of J. H. Patterson. He was convicted of manslaughter with a recommendation. to mercy, and sentenced to nine years’ imprisonment. He appeals, and by 14 exceptions imputes error. These 14 exceptions may be grouped under three heads: First, error in the formation of the jury; second, error in admitting testimony; third, error in the Judge’s charge to the jury.
Under the first group it is contended that a juror cannot sit over objection who has not paid his taxes six months prior to said service. The testimony shows that 19 of the jurors had not paid their poll and property taxes for the fiscal year 1920 (which taxes were due on October 15, 1920, and payable until December 31, 1920) until after January 1, 1921, and were called on May 1, 1921, within less than six months, to perform jury service. His Honor overruled all objections made on this ground and ordered these jurors presented. Appellant exhausted all of his challenges before the jury was complete. All of the jurors had paid their taxes before they'were called as jurors, except the juror, J. D. Early. He was 52 years old, and had not paid his poll tax at all. J. H. Fabian was permitted to pay his taxes when called to serve. All were competent jurors, under the opinion of Chief Justice McIver in
State v.
Wea
ver,
58 S. C., 106; 36 S. E., 499 , and
Garrett v. Weinberg,
54 S. C., 145; 31 S. E., 341 ; 34 S. E., 70 , except Juror Early. He was not a competent juror. He was liable to pay poll tax, and he had not paid it. He should have been excluded.
Was Juror Blanton an indifferent juror? He stated on his examinations that he had formed an opinion in the case, and that the opinion was so strong that it would not only take testimony, but strong testimony, the preponderance of testimony, to remove such opinion. From his answers he was not an impartial and indifferent juror. It will be seen from the examination of this juror that he admits that he had formed an opinion amounting to a prejudgment
*544
of the casé,' and that should have rendered him incompetent, whether he had expressed it or not. He says in examination on his
voir dire
that he had an opinion, and it would require evidence to remove. 24 Cyc. 293, says:
“It has been held that the juror should be held incompetent if he states that he has formed an unqualified, fixed, or either a rather positive opinion which will require evidence to remove, or that to remove it would take conclusive, strong, or considerable evidence, or where the juror seems uncertain as to whether the opinion will yield to evidence and not affect his verdict.”
It will be seen that the juror had formed such an opinion that he was prejudiced, and could not render a fair and impartial verdict, under the evidence in the case, and his Honor was in error in holding him a competent juror.
There should be a new trial on the ground that Juror Early had not paid poll tax, and that Juror Blanton was not an indifferent juror. It is not necessary to consider further the exceptions.