Ross

The commencement of the trial of the defendant, and the discharge of the jury, on account of the sickness of one of the jurors, without the consent of the defendant, did not constitute jeopardy or an acquittal of the defendant of the crime for which he was on trial; and evidence of that proceeding was not admissible to support a plea of once in jeopardy or former acquittal, in a subsequent trial upon the same or another information filed against him for the same offense.

Nearly a century ago, Kent, J., speaking for the supreme court of New York, in People v. Olcott, 2 Johns. Cas. 300 , 1 Am. Dec. 168 , said: “All the authorities admit that when any juror becomes mentally disabled, by sick *384 ness or intoxication, it is proper to discharge the jury; and whether the mental inability be produced by sickness, fatigue, or incurable prejudice, the result must be the same.” The unanimity of authorities upon that question remains the same to this day. The question is now too well settled to admit of argument. It is not an open one in this court.

The only other exception presented by the record is to a remark made by the district attorney, which is presented as follows:—

“After the…