The opinion
PETITION TO REHEAR.
We have been asked by the State’s representatives to reconsider our former holding as to the action of the trial Judge in pronouncing one Holden a competent juror, and thus forcing the defendant to exhaust upon him - one of the peremptory challenges.
In disposing' of this case, we held him to be a disqualified juror upon the ground that he had formed an opinion that the accused was guilty of forgery, from what Holden characterized as a close reading by him of the reports of a former trial of Ward as they appeared in the Commercial-Appeal. *731 It is true that these reports were of a trial for another forgery than that charged in the present case; and it is also true that this would not ■ have been a disqualifying opinion, formed, as it was, in another and a collateral case, except that the check, the alleged forgery of the name of S. C. Toof upon which is the basis of the indictment in this case, was made a subject of investigation and testimony in that case. This check was issued by one Pollard for the proceeds of a note discounted for Ward, payable to the order of Mr. Toof, on the Union & Planters’ Bank, and, as claimed by the State, uttered by Ward after he had feloniously placed the name of the payee upon it. A copy of the Commercial-Appeal newspaper, containing a most elaborate and detailed reproduction of testimony delivered by Mr. Toof as a witness in that case, then in process of trial, was brought into the bill of exceptions, and constitutes a part of the record in this cause. The newspaper report of his testimony as to the Pollard notes and checks (for there were many of them, including the one in question) was as follows: ‘ ‘ The State then showed the Pollard paper to witness, who said he was in Cuba when it was made. It purports to have been made in Memphis. Other Pollard notes were shown. Witness said his signature appearing oh these notes was not genuine, and he got no money from them. The money on these notes was given by Pollard in the shape of checks, payable to S. C. Toof. Wit *732 ness said he had indorsed none of these checks, and did not draw or receive the money on them. His signatures thereon were forged. He never saw the checks until after Ward’s flight. Witness did not do business with the bank where they were cashed, but Ward did.”
That this report was accurate is shown' by its complete correspondence with what Mr. Toof testified in this case as- to those same notes and checks. He repeats in this what he had so positively sworn in the former case — that all the indorsements on- these notes and checks of his name were forgeries — and states here, as he did there, as a confirmatory reason for his swearing as to the indorsement complained of in this case, that he was in Cuba when it was made. It is upon the reading of this testimony, and that of other witnesses to the fact, that Holden, as he confessed, had formed an opinion “adverse to the defendant” — an opinion which he says he had “expressed several times; a good many times,” and that he “had this opinion still.” It is certain that, if Holden had been present in court at the delivery of this testimony, or if, in conversation with him, Mr. Toof had made a similar statement to that reported in the newspaper, his opinion of Ward’s guilt, formed therefrom, would- have disqualified him from sitting on the jury in the present case, and this disqualification could not be removed by a mere statement that he had no opinion in this case.
While opinions resulting from rumors, whether *733 repeated from mouth to mouth or found in newspapers, will not disqualify, it is otherwise as to opinions based on the statement of witnesses to the fact, no matter when made or how reported. As was said in Spence v. The State, 15 Lea, 539 , “Newspaper reports, to disqualify a juror, must be such as fall within the disqualifying sources of information and purport to be detailed by those who professed to know the facts. Any other statement would only amount to rumor, whether in parol or printed.” In Woods v. State, 99 Tenn., 182 , it was said: “An impartial jury is one composed of twelve impartial men. The presence of one partial man in a jury destroys the impartiality of the body and makes it partial. Ellis v. State, 92 Tenn., 100 . Any disqualification which makes one member partial brings the jury, as such, within the prohibition of the fundamental law, impairs one of the highest and most sacred rights of the accused, and vitiates any verdict of guilty in which the partial member -may participate. A man who has prejudged the case upon its real facts is necessarily partial, and, therefore, incompetent to sit as a juror at the trial. An opinion as to the guilt or • innocence of the accused, however, is not always a disqualification. Those opinions which are based upon personal knowledge of the facts of the case, or upon a statement of the facts made by the witnesses themselves, or by others who have heard the witnesses relate them, disqualify.” And such is the holding of many of the Courts. *734 Among the cases announcing this rule of disqualification, are Brown v. State, 70 Ind., 576 ; State v. Jackson, 37 La. Ann., 768 ; State v. Culton, 82 Mo., 623 ; Rose v. State (Wash.), 26 Pac. Rep., 214 ; Mabry v. State, 71 Miss., 716 .
But it is said that the copy of the Commercial-Appeal containing the report was not sufficiently identified. The paper was offered, and the attorney of the prisoner, insisted upon submitting it to Holden for the purpose of examining . him with regard thereto. .From this, however, he was erroneously, but peremptorily, cut off by the trial Judge, upon objection by the Attorney-general. No question was made as to the identity of the newspaper or the authenticity of the report. No such question was suggested in the Court below, but evidently it was excluded upon the argument presented in this Court, that to permit this report to be read by the juror was to create a disqualification, when none then existed, an argument made in the teeth of the fact that the hostile opinion which had disqualified him was formed from reading the report.
Before concluding, it is not improper to say that, unless this Court is prepared to disregard its plain and unmistakable duty to see that all defendants charged with crime, however great or small, shall have a fair and impartial trial, the chief factor in which is an unprejudiced jury, the conclusion heretofore announced should be maintained. The law allowing the challenges was not made by us, but *735 by the Legislature. The statute giving the defendant a certain number of peremptory challenges not only is a permission to him to exercise the right, but it is a mandate to us and inferior Courts, which compels their allowance. If, therefore, one charged with crime has been made to exhaust his peremptory challenges on incompetent or disqualified jurors, who should have been excluded for cause, this statutory right has been taken away from him, and, unless it is within the power of this Court to authorize such a deprivation, we cannot do so. It is not only not permitted to us to do this, but the legislative grant to him is of a right that neither this nor any other Court in this State can take away.
This Court is given jurisdiction to see, among other things, that citizens arraigned for crime are fairly tried under the law and acccording to its forms and directions. We make neither, nor have we the authority to change either. We can no more deny a defendant, guilty or innocent, one right than another. If we should have the power to say, because we might at any time think a defendant guilty, that he would be deprived of one constitutional or statutory privilege, we could say that he should be deprived of others or of all such privileges. If we have the power to say he might be forced to trial before a partly prejudiced or incompetent jury, we could say he might be tried before one wholly prejudiced or incompetent, or without a jury at all. If we could say that he could be *736 tried with one less challenge than the statute allows, we could say that he could be tried with two less, or without any. We have no such power, and it is mere mockery to talk of this Court denying a defendant any legal right of the character indicated, or refusing 'to see that he was not allowed such right in a trial below, and at the same time denominate it a revising Court, constituted wholly to see that cases and individuals are tried below under and according to the form of law.
The power to try criminals is vested in Courts solely because persons, charged as such, can there be surrounded by the safeguards of law, and have punishment meted out to them only when their guilt has been established, after an open and fair prosecution, met by an open and fair defense. It is not merely a question of guilt or innocence of the accused. If so, the proceedings of a mob, which visits swift punishment without any of the protective forms of law, upon guilty persons, are correct, because a merited result is speedily and economically reached. Organized society, however, has always agreed that this cannot be allowed, but that the accused must be properly charged, be given full opportunity and facilities for. defense, have a fair trial by an impartial jury, according to fixed rules, and be convicted only when his guilt is made out beyond all reasonable doubt. The mob, by an enlightened public opinion, is condemned because of its disregard of all these. But what could be justly *737 said of Courts which would do likewise, and how much less culpable would they be if they so nearly approached the methods of a mob as to refuse the accused- any one of the vital demands essential to a fair trial, and execute or condemn according as they might will in a particular case ? Compared to such conduct in Courts, mob violence is praiseworthy, for the mob, at least, has no trust to trample on or judicial oaths to violate, or judicial order and propriety to outrage. If any Court should knowingly lend itself to the punishment of any citizen not properly tried and convicted, it would fall to the level of the unlicensed mob, to the ruin of its own influence and to the shame of the country. To the honor of our Courts, superior and inferior, they have never done any such shameless work, and, as long as they remain honest, will not do so.
Petition dismissed.