The opinion
George Howard, Jr., Judge, dissenting. I dissent inasmuch as I am of the view that the trial court erred in not excusing Mrs. Sylvia Jo Nutt for cause, over the objections of appellant’s attorney, which required the defendant to exercise one of his peremptory challenges in order to excuse Mrs. Nutt from serving as a juror.
During voir dire, the following exchange took place between the attorney for appellant and Mrs. Nutt:
MR. KE AT ON: Have either of you been either the victim of a robbery or had one of your'friends or relatives, loved ones, who have been the victim of a crime, robbery or any type of crime?
MRS. NUTT: We had a robbery. We had a robbery last year. Our property was returned to us quickly.
MR. KEATON: Okay, do you think that’s going to cause you any I guess, somewhat sympathetic feeling toward another victim who is the victim I guess of — what appears to be the victim of a crime.
MRS. NUTT: I hope not.
MR. KEATON: You think it might cause a few problems?
MRS. NUTT: Well I hope that it wouldn’t. But I can’t say definitely that it would.
* MR. KEATON: Okay, I guess what you’re really shying is that it might?
MRS. NUTT: There’s a far out chance that it might.
MR. KEATON: Okay. Even though like you already heard the Court instruct you as to what the law is and you know, what your duties are, and even after considering that, you still I guess in your mind, would be saying a slight reservation that it might cause you some problems to be somewhat sympathetic to I guess First National Bank.
MRS. NUTT: I’d make every effort for it not to be.
The following exchange took place between the Court and Mrs. Nutt:
THE COURT: Mrs. Nutt, if you were selected to serve on this jury, could you go into the jury box and be both fair and impartial to both the State of Arkansas and this defendant?
MRS. NyTT: I would hope so. I would try my best to.
THE COURT: Okay. In other words, now we’re here to listen to the witnesses tell us what happened.
MRS. NUJT: That’s right.
THE COURT: Because something happened last month, last year, ten years ago to you, is not going to affect you in determining the innocence or guilt of this defendant, would it? It could have no bearing, could it?
MRS. NUTT: Ithad no bearing on what happened to me. I hope that I’d be able to separate that from my own personal experience.
THE COURT: So you keep saying ‘hope,’ and ‘try’ and all that, and what — I guess I’m at a loss to understand how it could affect what the facts in this case are.
MRS. NUTT: I’m a real bad person at being able to see both sides.
THE COURT: You want to see both sides, and that’s what both of them want you to see, and if you go in the jury box, will you listen to what the witnesses say, and determine guilt or innocence, solely on the basis of what you hear from the witness stand?
MRS. NUTT: I think I could. I can’t be any more definite than that.
THE COURT: Í realize — I say it’s just like my wife, I think. Will you? Let me put it that way.
MRS. NUTT: I will.
THE COURT: All right. I think that she’s being as honest as she can be, and I think we sometimes nitpick as I call it with jurors when they are trying to be honest, and say, T really think I can,’ and I believe you can, and having known you for a long time, I believe you can. Your challenge is denied and your exceptions is saved.
Inasmuch as it is plain from the record that appellant ultimately exhausted all of his challenges, the ruling of the trial court may not be characterized as harmless error.
In Glover v. State, 248 Ark. 1260 , 455 S.W. 2d 670 , our Supreme Court made it clear that every accused is entitled to a fair trial by a panel of impartial and indifferent jurors. A failure to accord an accused this right violates the standards of due process.
David Newbern, Judge, dissenting.