Zeigler

The defendant having been convicted of murder in the first degree and sentenced to imprisonment for life, has appealed from the judgment and from an order refusing a new trial.

Appellant’s principal point, and the only one which I find it necessary to consider, arises upon an exception taken while impaneling the jury. On the commencement of the trial twelve jurors were called and sworn to answer questions. Of these, three were finally sworn to try the case. This consumed the first day of the trial, and defendant had then used six of his peremptory challenges. On convening court on the following day, the court excused one of the jurors who had been accepted and sworn to try the case, on account of sickness. Upon this matter the bill of exceptions recites: “The defendant at that time duly excepted to the excusing of said juror and moved that the rest of the jurors be excused, and the impaneling of the jury be commenced anew.” After some colloquy between the court and counsel, the court denied the request, and the defendant excepted. Then, to make the matter certain, counsel again demanded that the trial should begin anew, and that the jurors sworn be discharged. The court again…

I am compelled to dissent from the conclusion declared in this case. It may be conceded support for it is found in People v. Stewart, 64 Cal. 60 , which was afterwards followed in People v. Wong Ark, 96 Cal. 125 , without further consideration of the question. But the decision in People v. Stewart , upon careful examination, I conclude, is wholly unsatisfactory as containing sound exposition of the law, and should not be longer followed. That decision has been carefully reviewed in State v. Hasledahl, 2 N. D. 521 , and the reasoning found there pointing out its unsoundness appears to be conclusive.

The decision in People v. Stewart, 64 Cal. 60 , is inconsistent upon its face, for it declares that the defendant was entitled to twenty additional peremptory challenges, for the reason that after the sick juror was excused the trial, in the language of the statute, must “begin anew”; and it is then said, the trial beginning anew, the defendant necessarily is entitled to twenty challenges. The court also declared that the impanelment of the jury was part of the ’’trial.” Yet in that case it is apparent that the trial did not “begin anew,” in the sense that the impanelment of the jury…