Page:North Dakota Reports (vol. 2).pdf/549

 State of North Dakota, Defendant in Error, v. Martin O. Hazledahl, Plaintiff in Error.

Discharge of Juror During Trial—Information—Verification.

1. In this state, when, during the trial of a criminal case, and before the case has been finally submitted to the jury, a juror becomes sick and unable to sit further in the case, the court may order such juror discharged, and a new juror sworn to complete the panel, and that the trial begin anew; or the court may discharge the entire jury, and then or subsequently impanel another jury to try the case.

2. When the first course is pursued, the prisoner is not thereby entitled to again exercise all the peremptory challenges given him by statute, or to peremptorily challenge any one of the eleven remaining jurors; and in procuring the new juror the prisoner may exercise only such of his peremptory challenges as he has not already exhausted in procuring the other eleven jurors.

3. The information was filed by the state’s attorney under chapter 71, Laws 1890, and verified by the state’s attorney, as follows: “That the allegations therein contained are true to his best knowledge, information, and belief.” Held, that the information was sufficiently verified. Whether such verification is sufficient when made as a foundation for a warrant of arrest, or when made by a person other than the state’s attorney, not decided.

4. Where the information was not entitled in an action, and it nowhere appears by the information that the defendant was prosecuted in the name or by the authority of the state of North Dakota, proper and timely objection to the information being made, held, that the information was invalid, for the reason that it did not conform to the requirements of § 97, article 4, of the state constitution, which contains the following language: “All prosecutions shall be carried on in the name and by the authority of the state of North Dakota.”

(Opinion Filed May 31, 1892.)

ERROR to district court, Richland county; Hon. W. S. Lauder, Judge.

M. A. Hildreth, for plaintiff in error. C..A. M. Spencer, Atty. Gen., for the State.

Prosecution against Martin O. Hazledahl for embezzlement. Verdict of guilty, and judgment thereon. Defendant brings error. Reversed.