The decisions holding that such jurors are disqualified are more numerous than those holding that they are qualified. But see Fletcher v. Commonwealth, 106 Va. 850, 56 S.E. 151; Rose v. Commonwealth, 106 Va. 850, 56 S.E. 151; Irvine v. State, 55 Tex. Cr. 347, 116 S.W. 591; Bailey v. State, 56 Tex. Cr. 226, 120 S.W. 419. Langston v. State, 129 Miss. 398, cited by counsel for appellant, is not in point because in the Langston case four persons were jointly indicted for the commission of one offense.
1. It will be readily seen, by a comparison of the alleged cause for challenge in the first question presented with the above-quoted causes of challenge for "implied bias," that the challenge did not allege any one of the statutory causes, and therefore does not comply with the requirement of section 11962, that "one or more of the causes stated in section 11960" must be alleged. The general rule on this precise challenge, with no exception stated nor contrary decision cited, is laid down in Corpus Juris, as follows: "A juror is not incompetent because he has previously served upon the trial of another defendant charged with a separate and distinct offense, although of the same character, and proved by the same witness or witnesses" (35 C.J. 325, sec. 345), and is upheld in the following cases: State v. Van Waters, 36 Wn. 358, 78 P. 897; Bailey v. State, 56 Tex. Cr. 226, 120 S.W. 419; Irvine v. State, 55 Tex. Cr. 347, 116 S.W. 591; Fletcher v. Commonwealth, 106 Va. 840, 56 S.E. 151; Rose v. Commonwealth, 106 Va. 850, 56 S.E. 151; Turner v. State, 114 Ga. 421, 40 S.E. 308; People v. Albers, 137 Mich. 678, 100 N.W. 908; Venn v. State, 85 Tex. Cr. 151, 210 S.W. 534. The case of State v. Van Waters, supra, is practically identical with the case before us. The court, after stating that a juror who served upon the trial of another person for the same offense would be disqualified, continued: "But no such condition appears in the case before us. These were two distinct and separate crimes, committed at different times, having no relation, one with the other, save that they were of the same character and were committed on the same person. A juror, who had been convinced of the guilt of the defendant in the first, could not, from that fact alone, have any knowledge or opinion as to the guilt or innocence of the defendant in the second, and, of course, would not be disqualified for that reason."
Rep.; Arnold v. State, 38 Tex.Crim. Rep.; Irvine v. State, 55 Tex. Crim. 347; Edgar v. State, 59 Tex.Crim. Rep.. A number of other cases could be cited to the same effect.