¶1 dissenting: I dissent. The Bill of Rights of the people of this state accords a person accused of crime “a speedy public trial by an impartial jury.” (See. 16, Art. Ill, Constitution.) No provision of our Constitution is of more profound significance in the administration of justice. The accused is entitled to trial before twelve impartial men. (State v. Mott, 29 Mont. 292, 74 Pac. 728.)
¶2 “The right to trial by an impartial jury, every member of which is impartial, given by the Constitution, … is an unqualified one, which it is beyond the power of the Legislature to curtail, and any provisions of the statutes which relate to the selection of a jury are to be understood as merely providing the means by which the constitutional guaranty may be exercised to the fullest extent.” (Syllabus in *252 State v. Brooks, 57 Mont. 480, 188 Pac. 942.) In the case just cited, Mr. Justice Holloway, speaking for this court, well said: “The constitutional right to trial by an impartial jury is an unqualified' one. The guaranty of that right is found in our Bill of Rights, which declares the fundamental principles necessary to the protection of liberty and the security of government, and which, to all people of the Anglo-Saxon race, are their heritage from the great charter of English liberty.” (Page 487; 188 Pac. 943.)
¶3 The majority opinion concedes, as it must, the dominance of the constitutional guaranty over the prescribed statutory grounds of challenging a juror; but, in construing the statutes, and citing authority from other courts tending to support the conclusion reached, the plain object of the constitutional guaranty is utterly disregarded. I agree that it is not contrary to human experience that “fair-minded men could truthfully say, after hearing evidence sufficient on which to convict another of a like crime against the complaining witness, ’ ’ and even after hearing her state that she had also intercourse with this defendant, that they could and would try this defendant fairly and impartially on the evidence produced on the trial.
¶4 However, conversely, human experience teaches us that one of the most common things in life is for men to deal with others on the basis of reputation, either general or specific. Indeed, there is a marked tendency on the part of humankind to believe one capable of doing a certain act under given circumstances, when it is shown that he has done like acts before. Here the jurors who were challenged had already heard such evidence against the defendant, and had resolved in favor of the credibility of the prosecutrix'. Notwithstanding their undoubted honest effort to try the defendant impartially, they must have entered upon that duty with minds somewhat adverse to defendant. Under such circumstances the trial court should have been quick to excuse *253 the jurors, even in the absence of challenge made by defendant’s counsel. Proper regard for the orderly administration of justice is not aided by trying a person accused of crime before a jury composed like the one under consideration. The credibility of the prosecutrix was the principal matter for the jury’s consideration, for upon her testimony alone the defendant’s guilt or innocence was to be determined.
¶5 “There is no class of prosecutions attended with so much danger, or which affords so ample an opportunity for the free play of malice and private vengeance. In such cases the accused is almost defenseless.” (People v. Benson, 6 Cal. 221, 65 Am. Dec. 506.)
¶6 It cannot be said the defendant was accorded “trial by an impartial jury,” such as was his right guaranteed by the Constitution.
¶7 Defendant’s challenges should have been sustained and the four jurors excused.