The opinion of the court was delivered by
Wallin, J. The plaintiff in error was convicted of the crime of embezzlement, and sentenced to a term in the penitentiary at Bismarck. The bill of exceptions embraced in the record shows that, after the jury had been sworn, and a portion of the testimony introduced, a juror was taken sick, and was unable to sit further on the jury. The court thereupon made an order discharging such juror, entering the reasons therefor in the order, and directed that a new juror be called and duly sworn as a juror in the case, and that the trial of the case begin anew. In the formation of the original jury plaintiff in error had used nine of the ten peremptory challenges to which he was entitled under the statute. When a new juror was called into the box he was peremptorily challenged by the plaintiff in error, and such challenge allowed by the court. The second juror called was likewise challenged, and the challenge disallowed by the court, to which ruling plaintiff in error duly excepted. Such juror was sworn and served as a juror in the case.
Section 7401, Comp. Laws, reads as follows: “If before the conclusion of a trial a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged. In that case a new juror may be sworn, and the trial begin anew, or the jury may be discharged, and a new jury then or afterwards impaneled.” Under this section plaintiff in error contends that upon the discharge of the sick juror he was entitled to all his challenges, both as to the eleven jurors remaining in the box and the new jurors called, the same as though no jury had been previously selected. This section appears in our territorial Code of 1877, and is an exact copy of a section in the California Code of Criminal Procedure. We have not found the statute elsewhere. Subsequent to its adoption by the territory of Dakota it was construed by the supreme court of California in People v. Stewart, 64 Cal. 60, 28 Pac. Rep. 112, and later in People v. Brady, 72 Cal. 490, 14 Pac. Rep. 202. The construction placed upon the section in those cases fully sustains the position taken by the learned counsel for the plaintiff in error. But under the circumstances, the case comes before us as an original question, Many provisions in our statutes were
