
    McHugh v. The State.
    1. Sections 7267 to 7275, inclusive, of the Revised Statutes, are not repealed by the act of March 29,1881 (78 Ohio L. 95), in respect to impaneling juries in capital cases, or affected otherwise than in substituting the wheel, therein provided for, in place of the box from which the names of electors shall be drawn for jury service.
    2, A person summoned as a juror who states upon his voir dire that he has formed or expressed an opinion, touching the guilt or innocence of the accused, is prima facie incompetent, and such prima facie incompetency is not removed until it has been made to appear that such opinion was formed from reading mere newspaper statements, communications, comments or reports, or upon rumor or hearsay, and not upon conversations with witnesses of the transactions, or reading reports of their testimony, or hearing them testify, and that, notwithstanding such previously formed or expressed opinion, the juror is able to render an impartial verdict upon the law and the evidence. Frazier v..State, 23 O. S. 551, followed and appi'oved.
    Error to the Court of Common Pleas of Hamilton County.
    
      William BJ. ésB.C. Pugh and E. P. Dustin, for plaintiff in error:
    I. The court below erred in selecting the names of persons embraced in the venires issued in this cause for jurors, and in overruling the motion of the plaintiff in error, made at the time, of the names of persons for each of said venires, that the names should be drawn from the wheel in pursuance of the law in that behalf. Sections 7267 to 7275 Revised Statutes; Act of April 18, 1881 (78' Ohio Laws 181); Act of March 29, 1881 (78 Ohio Laws 95) § 5189 d.
    
      We demanded a jury drawn under the provisions of this last act and protested against any other.
    
      “ The act of 1866 (63 Ohio Laws, 22, section 2), relating to the repeal or amendment of statutes, was intended to preserve rights; but provisions in relation to juries relate to remedy, and juries must be selected according to the law in force at the timé the selection is made.” Warner v. Railroad Co., 31 Ohio St. 265.
    It seems that we have apparently two jury acts in force providing for the selection, impaneling and summoning of juries.
    If this court should hold that the jury that tried this defendant was not required to be drawn from the wheel, then the court must conclude that the law as contained in sections" 7267, 7268 7269 and 7275 as -amended, and section 5173, governed the impaneling of the jury, and the jury must have been drawn from the jury box. But the court below said that Hamilton county no longer had a jury box: how then is it possible to comply with the law of the state %
    
    Before section 5173 can be resorted to, the provisions of said sections 7267, 7268, 7269 and 7275 as amended must have been exhausted, and section 7275 as amended gave to either party the right to demand from the court, a special venire to fill the panel, and they must have been drawn from the jury box or wheel. The objection and demand of the defendant at the time of selecting the names by the judge, amounted to, and should be considered to be a demand for a special venire. In no event then, had the court the right to select the names of jurors for the trial of this cause. It was an arbitrary and unwarranted exercise of judicial power.
    II. The court erred in overruling the challenge for cause, of plaintiff in error, to the juror M. D. Osgood. Frazier v. State, 23 Ohio St. 551; Erwin v. State, 29 Ohio St. 186.
    
      George E. Nash, Attorney General, for the state.
   Longworti-i, J.

The plaintiff in error, William McHugh, was convicted in the court of common pleas of Hamilton county of murder in the first degree, and sentenced to suffer death. Numerous errors are assigned in the proceedings ; only two of which we think it advisable to consider.

I. It is said that the court erred in selecting the names of persons to serve as jurors in the special venires issued, and in refusing the motion of plaintiff in error that the names be drawn from the wheel as provided by the act of March 29, 1881 (78 Ohio L. 95.) In this we think there was no error. The method of impaneling juries in capital cases is specially provided for in chap. 6, title II. of the code by sections 7267 to 7275 inclusive, and differs essentially from that employed for obtaining juries in all other cases. These sections are not repealed and are not affected by the subsequent act of March 29, 1881, otherwise than in substituting the wheel for the box containing the names of electors from which the original panel is to be drawn. It was provided by section 7275 that, in case a full panel should not be obtained, or the whole array should be set aside, the vacancies should be filled from the bystanders. To this a proviso was added by the amendment of April 18, 1881 (78 Ohio L. 181), authorizing the issuance of a special venire upon the demand of either party as provided in section 5173. By the last-quoted section the court is required to select the talesman, as was done in the case at bar. Hence the court did not err in overruling the motion of the prisoner.

II. The second error alleged is the action of the court below in overruling the challenge for cause of the prisoner’s counsel to M. D. Osgood, who was permitted to serve as a juror upon the trial. This juror testified upon his voir dire that he had both formed and expressed an opinion touching the guilt of the prisoner, and that this opinion was formed from reading the accounts of the case in the newspapers and the published account of the examination before the coroner. It was decided by this court in Frazier v. State, 23 Ohio St. 551, that no juror is competent who has formed or expressed an opinion from having read what purported to be a report of thp testimony of witnesses of the transaction. This is decisive of the question before us; for, although it is argued by the state’s attorney that it nowhere appears that any testimony of witnesses was offered at tbe examination before tbe coroner, we are clearly of opinion that to establish tbe competency of tbe juror, it should be shown affirmatively that no such testimony was offered or appeared in tbe printed report. Where a proposed juror states that he has formed or expressed such an opinion he is primia facie incompetent, and it is error in the court to permit him to serve, unless the presumption of incompetency be removed by showing that his opinion was formed from reading mere newspaper statements, communications, comments or reports," or upon rumor or hearsay, and not upon conversations with witnesses of the transactions, or reading reports of their testimony, or hearing them testify. The case at bar is, in this respect, indistinguishable from that of Frazier v. State, above cited, and for this reason a new trial should have been granted.

Judgment reversed.  