The opinion
On Rehearing.
LAND, J.
[9] We think that the trial judge erred in not permitting the juror Mul *728 ler to testify in support of his own competency as a jurdr. See State v. Favre, 51 La. Ann. 434 , 25 South. 93 . We have, however, in the record a hill of exception which states fully the testimony which, if permitted, the juror would have given in his own hehalf. This testimony does not contradict the statements made by the witnesses for the prosecution, as to Muller’s declarations that he would not convict any one in a case like the one at bar, and that his sister-in-law some years ago had been seduced and had given birth to a child.
Muller would have testified “that he had expressed himself both in favor of the accused and against them having heard conflicting statements of the evidence in the case,” and “that his sister-in-law had been betrayed 10 or 12 years ago, but that fact had nothing to do with the trial of the issues of this particular case,” and that he could lay aside all the opinions he had formed and render an impartial verdict according to the law and the evidence.
The main witnesses for the prosecution on the trial of the motion to purge the jury were the wife and nephew of Muller, who testified positively, but with reluctance.
Only a part of Muller’s examination on his voir dire was taken down. The answers as far as reduced to writing show a fair and unprejudiced juror, who, to use his own language, knew of nothing that would prevent him from rendering an impartial verdict according to the law and evidence. This same juror, a few days before he was summoned, had told his wife and nephew that he would not convict any person in a case like thé one against the defendants. Muller’s bias arose not merely from sympathy for the alleged victim of seduction, but from the remembrance of the betrayal of his wife’s sister years before. A wrong of this kind cannot be forgotten, and naturally creates a strong prejudice against- all alleged seducers, and a strong bias in favor of all women alleged to have been betrayed.
We are satisfied from the evidence in the record that Muller was morally unfit and disqualified to sit on the jury. The trial judge was unfavorably impressed with the answers of the juror, on his voir dire, and on the facts had no doubt of the juror’s unfitness.
If Muller had previously expressed his intention to convict the defendants, the fact would have furnished good ground for a new trial. In reason and morals no distinction can be drawn between a juror’s intent to convict and his intent to acquit the defendant, since the bias of the juror in either case disqualifies him from rendering a fair and impartial verdict.
The power of the trial judge to remove a disqualified juror is settled by the authorities cited in our original opinion as well as the rule that in such a case a plea of former jeopardy cannot be interposed.
[10] After the overruling of the plea of former jeopardy, counsel for the defendant moved:
“That the remaining 11 jurors be sworn de novo to try the case.”
The court overruled the motion for the reason that each of the jurors already had been duly sworn to try the case. The defendants did not move that the 11 jurors be discharged, or that they be retendered for acceptance, or rejection, but that the jurors “be sworn de novo to try the case.” The motion necessarily implied an acceptance of the 11 jurors, and we agree with the trial judge that the reswearing of said jurors would have been idle and useless ceremony.
The other points made by the defendants are fully considered in our original opinion.
It is therefore ordered that our former decree, affirming the judgment below, be reinstated and made the final judgment of the court.
O’NIELL, J., takes no part.
*730 PROVOSTY, X, dissents, for the reason that, whiie the objections to the juror Muller might perhaps have been sufficient for excluding him on his voir dire, they were not“ so for taking him off of the jury after he had been duly accepted and jeopardy had begun.