Page:North Dakota Reports (vol. 2).pdf/551

 copied from California, and in their construction our labors have been greatly assisted by the opinions of the very able and painstaking court of that state, but in this instance we are unable to follow where that court leads. In Stewart v. People, the court say: “ What is implied by the clause, ‘and the trial begin anew?’ The title of the chapter which provides for the challenging the jury is: ‘Of proceedings after the commencement of the trial and before judgment.’ We think, within the meaning of the Code, a trial commences when the case is called for trial, unless the trial is then postponed; that everything that transpires in the case after that and before judgment is a part of the trial. That being so, it follows that the defendant was entitled after the change had been affected, to all the challenges which the law gave him in the first instance. Within that limit he not only had a right to challenge the new juror but likewise any or all of the original eleven.” To our minds that reasoning goes too far. If the word “ trial” in the phrase “and the trial begin anew” includes everything from the time the case was called, then, necessarily, the names of the remaining eleven must go back in the clerk’s box to be redrawn. There cannot be eleven jurors in the jury box when the case is called. If the trial is to “begin again” at the calling of the case, necessarily the jury must be impaneled again, and of course must first be discharged from the prior panel. And we think the reasoning in People v. Stewart leads to that result unmistakably. If the accused has the right to challenge any or all of the remaining eleven, then it must be true that there is not an accepted juror in the box. But there were twelve accepted jurors before the one was taken sick, and they could only be relieved from that condition by being discharged. Hence, in every case the practical effect of discharging the one sick juror is to discharge the entire jury under that construction. But that could not have been the intent of the legislature, because in the sarae connection it is provided that the court may discharge the sick juror, and swear another to fill his place, or may discharge the entire jury and impanel another. It does not meet the point to say that, unless the accused challenges the remaining eleven, or some of them, they retain their character as jurors. That would always place