Page:North Dakota Reports (vol. 2).pdf/552

 it in the power of the accused to discharge the entire jury or not, at his election. The law places the election with the court. Moreover, the character of juror cannot attach while the right to challenge remains. Under the English practice when, during the progress of a trial, a juror becomes sick and unable to sit, the jury is always discharged. The names of the eleven men are immediately recalled, and another name taken from the panel to complete the number. The accused is then given all his challenges to the twelve, after which each juror or the person substituted by the challenge must be sworn de novo. See Whart. Crim. Pl. & Pr., note to § 508. It thus appears that in England, where the jury is always discharged, the process is precisely the same in effect that is announced in People v. Stewart, when the jury is not discharged.

The word “trial” is sometimes used in a broad sense, including all the steps taken in a case prior to final judgment, but in its restricted sense it includes the investigation of facts only. Jenks v. State, 39 Ind. 9. We think it is used in the restricted sense in the statute under construction. Our statute defines a trial to be “the judicial examination of the issues between the parties, whether they be issues of law or fact.” Comp. Laws, § 5031. A jury trial would be the examination of an issue of fact. The first definition of the word “trial” in Anderson's Law Dictionary is: “The examination of the matter of fact in issue.” Mr, Wharton, in his note on the English practice, already cited, after stating that the jury must be sworn de novo, and charged with the prisoner, adds: “The trial must then begin again.” We think that generally where the word “trial” is used in connection with the jury it means the examination of the issue of fact. The sequence of the wording of the statute would indicate that it isso used. It says: “A new juror may be sworn, and the trial begin anew.” The trial begins anew after the new juror is sworn. The statute uses the singular number—“juror;” neither “jurors” nor “jury.” Under our practice jurors are sworn separately. Territory v. O'Hare, 1 N. D. 30. We think the statute clearly intends that when the sick juror only is discharged the condition of the remaining eleven is not affected. They stand as accepted and