The sole question presented by the record is whether the judge should have set aside the verdict by reason of the fact that one of the jurors was related to the prosecuting witness within the seventh degree ?
It has been generally held that “the finding of fact by the presiding judge, who is far better acquainted with the surroundings than we can possibly be, is conclusive, and we cannot look into the affidavits, whether one or more, to reverse such finding.” S. v. Crane, 110 N. C., 530; Radford v. Young, 194 N. C., 747; S. v. Adkins, 194 N. C., 749.
Notwithstanding, it is also true that the law has always regarded relationship by blood or marriage within the ninth degree as a disqualification for jury service. S. v. Potts, 100 N. C., 457, 6 S. E., 657; McIntosh on North Carolina Practice and Procedure, sec. 655(6).
Indeed, the prevailing idea of law for more than a century has been that a person accused of crime is entitled to a trial by a fair and impartial jury. It is known of all men and has been known from time primeval that the call of blood is always powerful and potent, and ordinarily and usually irresistible. The urge to yield to'such call in time of attack is not a mark of frailty but a badge of strength. "Wherefore, the law, not only as a science of reason, but in the exercise of sound common sense, has invariably recognized blood relationship as the universal producer and creator of bias and favor in the trial of causes. In the case at bar, the trial judge finds that the bias of blood against *701tbe defendant existed in one of tbe jurors, but it is suggested that tbe juror was related to tbe prosecuting witness and tbat a prosecuting witness is not a “party” in a tecbnical sense, in a criminal action. Hence, it is reasoned from sucb premise tbat tbe juror was competent. Tbe fallacy of sucb reasoning lies in tbe fact tbat tbe defendant was tbe one on trial and tbe law guaranteed to him an impartial jury. Therefore, be was tbe party against whom tbe bias might silently and secretly work. In S. v. Brady, 107 N. C., 822, it was held tbat a prosecuting witness was not “a party” to a criminal action. Technically this is true, but tbe question at issue in tbe Brady case was not even similar to tbe question now under consideration. Furthermore, tbe judge found tbat tbe juror knew of tbe relationship and was desirous of disclosing tbe fact to the court before evidence was introduced and was advised not to do so. It does not appear who gave sucb advice, but it is certain tbat tbe matter was discussed. Tbe judge also found tbat tbe attorney for tbe defendant requested information in passing upon tbe jury as to whether any juror was related to the prosecuting witness, and tbat tbe juror Patterson made no reply or disclosure. Thus, tbe attorney, through no fault of bis own, was lulled into a sense of security. A somewhat similar situation arose in tbe ease of Hinton v. Hinton, 196 N. C., 341, where counsel was misled by tbe statements of tbe juror. Tbe Court found as a fact tbat counsel was so misled and set tbe verdict aside. Tbe ruling was approved by this Court. So, in tbe case at bar tbe defendant is entitled, under tbe facts disclosed, to have tbe court find as a fact whether tbe defendant or bis counsel was misled and whether be would have challenged tbe juror bad tbe real facts been disclosed. It is true tbat tbe trial judge found tbat tbe defendant was not prejudiced “by said juror serving,” but sucb finding in tbe light of tbe facts is rather a conclusion of law than a finding of fact. Tbe prosecuting witness, tbe kinswoman of tbe juror, was subjected to bitter and relentless attack and much evidence offered to sustain tbe attack so made. Thus tbe stage was perfectly set to arouse in tbe juror tbe elemental passion, common to our human nature. Whether be actually yielded thereto is not tbe point. Tbe point is, tbat tbe potential bias, which tbe law condemns was present and tbe defendant, through no fault of bis own, was prevented from discovering its existence.
Tbe cause is remanded to tbe Superior Court for a finding as to whether tbe defendant or bis counsel was misled, and if tbe judge shall find tbat tbe defendant or bis counsel was misled, tbe judgment should be set aside; otherwise to remain in full force and effect.
Stacy, C. J., dissents.