Page:North Dakota Reports (vol. 2).pdf/557

Defendant objected to being tried before the new jury impaneled after the discharge of one of the original jurors on account of his illness, and based his objection upon the theory of a former jeopardy. But the discharge of the juror, when he became unable to perform his duties, was entirely proper, as it was occasioned by an obvious legal necessity. In such cases, the plea of former jeopardy cannot be allowed under the modern decisions, What. Crim. Pr. & Pl. (9th Ed.) § 508, and cases cited. The judgment will be reversed, and a new trial ordered. All concur.