¶1In a trial for an indictable offence, which may be punished capitally, or by confinement in the penitentiary, it is a good challenge for cause by the State, that the juror has a fixed opinion against capital or penitentiary punishments. — Code, § 3585; Ex parte McCrary, 22 Ala. 65.
¶2But the right of the State to- challenge the juror for that cause is lost, when he is accepted by the State, and put on the prisoner, and' accepted by him. After the right is thus lost, it cannot be revived by any act of the solicitor or the court, against the objection of the prisoner, although the solicitor and court were ignorant of the existence of that cause of challenge when the juror was accepted by the State and the prisoner. This is one of the advantages which the law allows to the prisoner on principles of humanity or policy. The Commonwealth v. Lesher, 17 Serg. & Rawle, 164, opinion of Gibson, J.; Montague v. Commonwealth, 10 Grattan’s R. 767; Dowdy v. Commonwealth, 9 Grattan’s R. 727; McCauley v. The State, 26 Ala. R. 135.
¶3The decision of the court setting aside the juror for that cause, after he had been accepted by the State and the prisoner, is matter of exception on the part of the prisoner, which it is his right to have reviewed in this court; and such decision, having been made against his objection, and been duly excepted to by him, is an error, which entitles him to a reversal of the judgmeiit. — Parsons v. The State, 22 Ala. R. 50; Montague v. Commonwealth, 10 Grattan’s R. 767; The State v. Shaw, 3 Iredell’s R. 532; McCauley v. The State, 26 Ala. R. 135.
¶4For the error of the court below in setting aside the juror, its judgment is reversed, and the cause remanded.