Page:North Dakota Reports (vol. 2).pdf/553

 sworn jurors, subject to no challenge, and but one other man is to be sworn as an additional juror to complete the panel. The condition of the jury after the discharge of the sick juror is identical with its condition when but eleven jurors had been secured. The word “trial,” as used in the first part of said § 7401, is certainly used in the restricted, and not the broad, sense. It says, “If before the conclusion of a trial,” ptc. Turning to § 7413, we find what course is to be pursued if a juror is taken sick after the jury has retired. Certainly the “trial” mentioned in § 7401 terminates with the termination of the investigation of the facts, otherwise § 7413 would be superfluous. This indicates that the word “trial,” as used in § 7401, is restricted in its significance to the investigation of the facts, commencing after the jury is sworn and ending with the charge of the court. The meaning of the word is so limited by both § 7401 and § 7413. This construction deprives the accused of no constitutional right, and involves no hardship. In securing the twelfth juror he may, as he always may, use any peremptory challenges that he has not already exhausted in procuring the eleven. If he has already exhausted all his peremptory challenges, then, in this case, as in every other, the first man called against whom no challenge for cause can be interposed must be sworn as a juror. But the accused exhausted no peremptory challenges in disposing of the sick juror. He has used all the peremptory challenges which the statute gives him in securing the jury of twelve men by whom he is tried, and he has no ground for legal complaint. We think it radically unsound to assume that the legislature intended to place the accused, so far as his peremptory challenges were concerned, in the same position when one juror was discharged as when twelve men were discharged. To prevent all possibility of prejudice to accused parties, the statute has given the trial court full discretion to discharge the entire jury, and we must presume the court will adopt that course in all cases when there could be a suspicion of prejudice to the rights of the prisoner in adopting the first course. We think the trial court committed no error in the formation of the jury.