Edwards

The defendant was convicted of burglary in the second degree in entering a room of a building on Market street, in San Francisco, with intent to commit larceny, and was sentenced to the state prison for three years.

When the court commenced to impanel the jury for the purpose of trying the defendant, twelve of the jurors who were in attendance upon the court had been impaneled to try another cause, and were then deliberating upon their verdict, and the slips upon which their names were written had been tied together by a rubber band, and placed by the clerk in the jury-box. When five or six jurors had been drawn and sworn in the *544 present case, this other jury came into court with their verdict, and were discharged. The clerk did not, however, remove the band from their names until after ten jurors had been accepted and sworn to try the defendant, nor until after the defendant’s counsel had called the attention of the court to this fact. The defendant’s attorney then moved for the discharge of the jury upon the ground that it had been irregularly and illegally drawn and impaneled, and, after the completion of the jury, made another motion for its discharge upon the same…