These jurors heard the county attorney make some statements as to the nature of the offense in the former case. This court has held it to be reversible error for the trial court, over the objection of defendant, to impanel a jury for the trial of the defendant from among those who had sat as jurors in the trial of a similar case against him at the same term of court. Jean v. State, 49 Okla. Cr. 409, 295 P. 233; Popp v. State, 44 Okla. Cr. 220, 280 P. 478; Moffitt v. State, 45 Okla. Cr. 440, 283 P. 1027; Weber v. State, 44 Okla. Cr. 450, 281 P. 987. But, the four jurors in this case, whose impartiality is questioned, did not sit as jurors in the former case.

Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial according to the due and orderly course of law, and it is a duty resting upon the courts to see that the guaranty of such a trial, conferred by the laws upon every citizen, shall be upheld and sustained. Sutton v. State, 35 Okla. Cr. 263, 250 P. 930; Bramble v. State, 37 Okla. Cr. 35, 255 P. 1104; Clark v. State, 12 Okla. Cr. 263, 154 P. 1005; Popp v. State, 44 Okla. Cr. 220, 280 P. 478. Attorneys for a defendant are entitled to, and must receive, absolutely fair treatment at the hands of the trial court, and, when this is not accorded them, and the error is of such a character that it may have influenced the jury in finding a verdict, a conviction will be reversed.

Where it appears that the fairness and impartiality of a juror is called in question, the trial court must be clearly satisfied that the juror is fair and impartial, and any doubt upon that point should be resolved in favor of the accused. Temple v. State, 15 Okla. Cr. 176, 175 P. 733; Schrimpsher v. State, 32 Okla. Cr. 371, 241 P. 201; Popp v. State, 44 Okla. Cr. 220, 280 P. 478; Weber v. State, 44 Okla. Cr. 450, 281 P. 987; Moffit v. State, 45 Okla. Cr. 440, 283 P. 1027. The fact that the juror sat in the trial of a similar case does not disqualify. 35 C. J. 325, § 343F, and authorities cited. It does not appear the juror concealed or failed to answer fully and truthfully any question propounded him on voir dire.

The mere fact that the juror may be of the opinion that he can try a case fairly and impartially is not alone a test as to his competency. Popp v. State, 44 Okla. Cr. 220, 280 P. 478; Lane v. State, 51 Okla. Cr. 107, 299 P. 923. The overruling of the challenge for cause was prejudicial error, depriving the defendant of a fair trial.

"The Attorney General is impelled to confess error in this case; a thing he very seldom ever does. The error is confessed on the authority of the case of Popp v. State, recently decided by this court and reported in 44 Okla. Cr. 220, 280 Pac. at "In this case it appears that the plaintiff John Lane was jointly charged in the county court of Logan county with one Carie Ingle, Theodore Bolton and Melvin Childs with having, on or about the 12th day of December, 1929, the unlawful possession of fifteen (15) gallons of whisky. It is undisputed that the same defendants were also jointly charged with the unlawful possession of a still on the same day and at the same time and place. It is also undisputed that the codefendant Carie Ingle was, on the morning of the day this defendant was convicted in this court, to wit, on the 24th day of April, 1930, separately tried in another case for the unlawful possession of this whisky still and was by a jury convicted in that case.

It appears from the record that the defendant had been tried at the same term of court upon a charge of selling intoxicating liquor, and that four of the jurors who served in that trial were impaneled as jurors in the case at bar, after the defendant had exhausted his three peremptory challenges. This court has held it to be reversible error for the trial court, over the objection of defendant, to impanel a jury for the trial of the defendant from among those who had sat as jurors in the trial of a similar case against him at the same term of court. Popp v. State, 44 Okla. Cr. 220, 280 P. 478; Moffitt v. State, 45 Okla. Cr. 440, 283 P. 1027. For the reasons stated, the cause is reversed and remanded, with directions to the trial court to hear the defendant's evidence on his motion to suppress, and to proceed according to law in the trial of said case.

"Where it is made to appear that certain jurors called for the trial of a defendant sat in a previous trial of the same defendant on a similar charge, and where it appears that some of the controverted questions of fact in the case in which they are called as jurors are the same as in the case previously tried, and to be established in whole or in part by the same witnesses, such jurors are not `impartial,' within the meaning of the statute and Constitution, and the permitting of such jurors to remain on the panel is an abuse of discretion, requiring a reversal." See, also, Popp v. State, 44 Okla. Cr. 220, 280 P. 478; Moffitt v. State, 45 Okla. Cr. 440, 283 P. 1027. It will be noted that in Schrimpsher v. State and Moffitt v. State, supra, it was the same defendant being tried before practically the same jury; but we know of no rule that disqualifies a juror because of the fact that he has heard the testimony of witnesses in other cases at the same term of court, where the same witnesses are to be used in the trial of the case then about to be submitted to the jury, and counsel for defendant cite no authorities in point.

This court has uniformly held that defendant was entitled as a constitutional right to have a jury impaneled, free from any opinion as to the guilt or innocence of the defendant and free from bias or prejudice against the defendant because of anything they had heard or knew that would tend to prevent them from giving the defendant a fair and impartial trial. Popp v. State, 44 Okla. Cr. 220, 280 P. 478, Weber v. State, 44 Okla. Cr. 447, 281 P. 987. While it is of great importance that every guilty man should be speedily brought to justice and punished for his crime, it is of still greater importance that the citizens of Oklahoma should know that the courts of the state will secure to each and every one of them, it matters not how poor, friendless, or unpopular he may be, the full protection afforded by each substantial privilege and right guaranteed to them by the Constitution and laws of this state.

Although the trial judge in this case asked the jurors whether what they had seen and heard in the former trial would affect their verdict in this case, and although their answer was in the negative, yet this court cannot say that, in light of all the facts and circumstances as presented by the record, the jurors in this case could have a fair, impartial, and unbiased attitude or opinion in rendering a verdict against this defendant. In the case of Popp v. State, 44 Okla. Cr. 220, 280 P. 478, 479, this court said: "Where the fairness and impartiality of a juror is called in question, the trial court must be clearly satisfied that the juror is fair and impartial, and any doubt upon that point should be resolved in favor of accused."

It is true that the state's witnesses were not the same, but the circumstances were the same, the place at which the offense was alleged to have been committed was the same, the offense charged of the same kind, namely, unlawful possession of intoxicating liquor, and the evidence required to convict was practically the same. It is evident that under these circumstances a juror who had tried the defendant at the same term of court was disqualified to enter upon the trial of the case at bar. In the case o Popp v. State, 44 Okla. Cr. 220, 280 P. 478, 479, this court had under consideration the question involved in this case in which this court said: "Where the fairness and impartiality of a juror is called in question, the trial court must be clearly satisfied that the juror is fair and impartial, and any doubt upon that point should be resolved in favor of accused."