¶1dissenting.
¶2The defendant is under sentence of death upon a conviction resting on circumstantial evidence. We will concede that the crime committed was a most atrocious murder, and that the evidence against the defendant is very strong, yet there is a possibility that his story may be true and he be innocent. Whenever there is any room for doubt, the law should not take a human life until the accused has been given the benefit of every safeguard which its procedure throws around him.
¶3On the trial of this case it is clear that the district court erred in overruling the challenge for cause by defendant’s counsel to at least four jurors on their voire dire examination. Under the rule in such a case, clearly announced by this court in Thurman v. State, 27 Neb. 628, the fact that neither of these four jurors finally sat on the trial of the case is immaterial if the defendant had used all his *171peremptory challenges before the final twelve were sworn to try the case. The statute of this state gives the defendant in a capital case sixteen peremptory challenges of jurors tendered, and defendant is not required to assign any reason for the exercise of such challenges. When these challenges are exhausted, he is at the mercy of any juror tendered, who by his answers upon his voir dire legally qualifies himself, and defendant is compelled to risk his life upon the verdict of such juror, even though he and his counsel may know to a moral certainty that the juror is greatly biased against him. In such a case we ought not to apply any technical rule to prevent a new trial. On the first hearing no claim was made by the state that the “jury list,” filed immediately ■ after the jury was impaneled, was not properly before this court in the bill of exceptions, nor that it did not establish the fact that the defendant had exhausted his peremptory challenges. On the contrary, the latter fact was conceded by the state, and the opinion of Barnes, O. J., was written upon that theory. I think the state should be held to that admission. If I am right in this, then a rehearing should be granted, and the defendant given another trial, before a jury selected under the established rules of procedure in this state. While I concur in the conclusion reached by my associates which vacates a portion of the opinion and Syllabus in the former opinion, I am, for the reasons hereinbefore stated, unwilling to hold that the record is insufficient to bring this , case within the rule announced in Thurman v. State, supra,and am unable to concur in overruling defendant’s motion for rehearing.