The opinion
HUNTER, Justice,
concurring in result.
It is true that our trial courts have discretionary authority to excuse prospective jurors. As this Court stated in Holt v. State, (1977) 266 Ind. 586 , 365 N.E.2d 1209 , however, “Certainly this discretion must not be exercised illogically or arbitrarily .... ” Here, the trial court’s dismissal of prospective juror Cynthia Long, a single woman who lived alone in a rented apartment, was purely arbitrary and transcended its discretionary authority.
In Stevens v. State, (1976) 265 Ind. 396 , 354 N.E.2d 727 , this Court unanimously held that a twenty year old juror who resided in a rented apartment with his brother was a “householder” within the meaning of the governing statute, Ind.Code § 33-4-5-7 (Burns 1975). There, we rejected the argument that the juror improperly had been permitted to serve on the jury.
Here, the majority states that prospective juror Long “might have qualified as a householder.” Maj. Op., supra. Obviously, Long did qualify — as per our holding in Stevens . The trial court erred in excusing her because “she neither owned real estate nor had anyone dependent upon her for support and therefore was not a householder.” Maj. Op., supra. This Court should recognize that fact and should not countenance the dismissal of qualified jurors on grounds that defy Ind.Code § 33-4-5-7, supra, and our own case precedent. Stevens v. State, supra.
In dismissing Long, the trial court acted arbitrarily and abused its discretion. The abuse of discretion should not be confused with the second prong of the test necessary to gain relief — prejudice to the defendant by virtue of the improper dismissal of a prospective juror. Here, there is no indication that any prejudice inured to defendant; therefore, I concur in the result reached by the majority. Conceding the difficulty of establishing prejudice by virtue of a prospective juror’s dismissal, however, it behooves this Court to expressly recognize the trial court’s error, lest it appear that absolute and unfettered discretion rests with our trial courts to excuse qualified jurors. That is not the case, as we recognized in Holt v. State, supra.
I concur in result.