Against the defendant below (the plaintiff in error here), Richard S. Williams, two indictments, numbered, respectively, 3,267 and 3,268, were returned in the district court of the United States for the Northern district of California; each indictment containing, two counts. The cases were consolidated and tried together, resulting in a verdict of guilty in each case. The accused interposed a motion in arrest of judgment on the second count of *397 each indictment, and also moved for a new trial in each case. The first motion was sustained by the trial court, and, the motion for a new trial having been overruled, judgment was entered against the defendant on the first count of each indictment, from which judgment an appeal was taken to the supreme court, where the judgment was reversed and the case remanded for a new trial. 168 U. S. 382 , 18 Sup. Ct. 92. Upon the retrial in the district court upon the first count in each indictment, a verdict was returned finding the defendant not guilty as charged in indictment numbered 3,268, and guilty as charged in the first count of indictment numbered 3,267, on which verdict he was sentenced by the court below under the first count of the last-mentioned indictment. On the present appeal, therefore, we have only to consider the first count of that indictment, by which it was, in substance, changed that the plaintiff in error, an officer of the treasury department, duly appointed and acting under authority of the laws of the United States, and designated as Chinese inspector of the port of San Francisco, and by virtue of Ms office being authorized, directed, and required to aid and assist the collector of customs of that port in the enforcement of the various laws and regulations relating to the coming of Chinese persons and persons of Chinese descent from foreign ports to the United States—

The first point relied upon by the appellant, and in respect to which error is assigned, relates to the ruling of the court below in respect to the qualifications of one Elliott to serve as a juror. He was examined on his voir dire as to his qualifications. The bill of exceptions states that in response to a question put to him by the *398 United States attorney, as to whether he knew ánything of the case, Elliott answered that “he had discussed the case with one Lyman Mowry, at one time the attorney of said defendant in said action, that he was intimately acquainted with said Mowry, and that, as the result of said discussion, he (said Elliott) was prejudiced in the case.” The bill-of exceptions proceeds:

The court below overruled tbe challenge, to which ruling the defendant duly excepted, and Elliott was sworn, and served as a juror; prior to which the defendant had exhausted all of Ms peremptory challenges.

We are of opinion that Elliott was not an impartial juror. No one, we apprehend, will deny that the accused was entitled to an impartial jury. That right was not only secured to Mm by the sixth amendment of the constitution of the United States, but is recognized by every court of justice. It is entirely true that mere hypothetical opinions, expressed or unexpressed, derived from public rumor, statements in public journals, common notoriety, and other like sources, do not disqualify a juror, when it is made to appear that notwithstanding such opinions he can and will be governed in Ms actions in the case entirely by the evidence that may be introduced upon the trial. All authorities concede, said the supreme court in Reynolds v. U. S., 98 U. S. 145, 155 , “that, if hypothetical only, the partiality is not so mamfest as to necessarily set the juror aside.” The court then quotes the rule as stated by Mr. Chief Justice Marshall in Burr’s Trial, 1 Burr’s Tr. 416, Fed. Cas. No. 14,692g, that:

The supreme court, in the Eeynolds Case, then proceeds:

The rule thus declared by the supreme court has been subsequently adhered to. Hopt v. Utah, 120 U. S. 430 , 7 Sup. Ct. 614; Spies v. Illinois, 123 U. S. 132 , 8 Sup. Ct. 21.

Now, turning to the examination of the juror Elliott, it is seen ihat he had previously discussed the case with the former attorney of the defendant thereto, with whom he was intimately acquainted, and from that discussion he became prejudiced, which prejudice is shown by his answer to the question asked by the court to have been against the defendant. And, although the juror stated tfiat he had not a “fixed opinion” as to the guilt or innocence of the defendant, he stated that Ms mind was “strongly colored” in the matter, and that his prejudice was so strong that it would require evidence to remove it, and that perhaps, in some degree, it would shape his convictions or judgment. Surely, a mind so affected cannot be properly said to be open to a fair consideration of such evidence as should be given, or to be in such condition as to be fairly presumed to yield, without any resistance, to the force of the evidence. And that the juror himself did not feel certain that the strong prejudice he entertained could be overcome by the evidence plainly appears, we think, not only from his statement that it wrould perhaps, in some degree, shape his convictions or judgment, but from Ms answer to the question of the court, in which he was asked whether he thought he would be able to sit as a juror, and return a verdict based solely upon the evidence he would hear; his answer being:

Certainly, this answer also indicated a decided doubt in the mind of the juror whether he would be able to disregard the strong prejudice he derived from Ms discussion of the case with the defendant’s former attorney therein, and be controlled solely by the evidence introduced on the trial. The law does not and cannot deem such a juror impartial. Every defendant in every criminal case is by the law presumed to be innocent until Ms guilt is established by proof beyond a reasonable doubt, and to the benefit of that reasonable doubt the defendant is entitled from the beginning to the end of ihe trial; and it applies as well to the examination of jurors as to any other step in the trial. In Wright’s Case, 32 Grat. 941, the court: said:

In Holt v. People, 13 Mich. 224 , Judge Cooley sa-id that in criminal cases, wherein, after full examination, the testimony given upon a challenge leaves a reasonable doubt of the impartiality of the juror, the defendant should be. given the benefit of the doubt.

In People v. McQuade, 110 N. Y. 300 , 18 N. E. 162 , the court of appeals of that state, speaking of the statutory modification of the common-law rule, said:

In State v. McClear, 11 Nev. 39, 67 , Hawley, O. J., in concluding a well-considered opinion, said:

See, also, People v. Wells, 100 Cal. 227 , 34 Pac. 718 ; People v. Casey, 96 N. Y. 122 ; Stephens v. People, 38 Mich. 739 ; Smith v. Eames, 36 Am. Dec. 515 , and cases cited in note thereto.

One other-point- made' on behalf of the appellant it is necessary to decide, as,, if it .should be sustained, it would, in view of the evidence. *401 in the case, he useless to direct a new trial. That point is that there is a fatal variance between the proof on the part of the prosecution and the allegations of the indictment. It is contended in support of this point that the proof shows that the money was extorted by the defendant, if at all, not from Wong Sam, as alleged, hut from one Chin Deock; and this, upon the ground that the money really came from Chin Deock, although the defendant dealt in the unlawful and criminal transaction with Wong Sam, and received the money from him. Both Wong Sam and Chin Deock were witnesses on the trial, and, according to their testimony, it was at the request of the latter that Wong Sam agreed to pay the defendant $100 for securing the landing of Wong Lin Ghoy, and that, when the defendant came to Wong Sam for the $100, the latter gent for Chin Deock, who brought the money, and, in the presence of the defendant, handed it to Wong Sam, who, in turn, handed it to the defendant, after trying to induce him, without avail, to accept $90. We do not think the circumstance that Wong Sam got the money that he paid the defendant from Chin Deock of any importance. The transaction constituting- the crime, according- to the evidence, was between the defendant and Wong Sam. The defendant, so far as appears, did not know Chin Deock, in the matter, at all, and had nothing to do with him. It was from Wong Sam that he demanded $100 for procuring the landing of Wong Lin Choy, and from Wong Sam that he received the money. This is in accordance with the averments of the indictment, and there w'as no variance.

It is not necessary to consider any other assignment of error, as they all relate to the rulings of the court below, which, if in any respect erroneous, can be readily corrected on the new trial which must follow for the reason first stated herein. Judgment reversed and cause remanded for a new trial.