State v. Hasledahl

• Decision Date: 31 May 1892
• Parties: STATE v. HASLEDAHL.
• Court: North Dakota Supreme Court

2 N.D. 521

52 N.W. 315

STATE

v.HASLEDAHL.^*

Supreme Court of North Dakota.

May 31, 1892.

Syllabus by the Court.

1. In this state, when, during the trial of a criminal case, and before the case has been finally submitted to the jury, a juror becomes sick and unable to sit further in the case, the court may order such juror discharged, and a new juror sworn to complete the panel, and that the trial begin anew; or the court may discharge the entire jury, and then or subsequently impanel another jury to try the case.

2. When the first course is pursued, the prisoner is not thereby entitled to again exercise all the peremptory challenges given him by statute, or to peremptorily challenge any one of the 11 remaining jurors; and in procuring the new juror the prisoner may exercise only such of his peremptory challenges as he has not already exhausted in procuring the other 11 jurors.

3. The information was filed by the state's attorney under chapter 71, Laws 1890, and verified by the state's attorney, as follows: “That the allegations therein contained are true to his best knowledge, information, and belief.” Held, that the information was sufficiently verified. Whether such verification is sufficient when made as a foundation for a warrant of arrest, or when made by a person other than the state's attorney, not decided.

4. Where the information was not entitled in an action, and it nowhere appears by the information that the defendant was prosecuted in the name or by the authority of the state of North Dakota, proper and timely objection to the information being made, held, that the information was invalid, for the reason that it did not conform to the requirements of section 97, art. 4, of the state constitution, which contains the following language: “All prosecutions shall be carried on in the name and by the authority of the state of North Dakota.”

Error to circuit court, Richland county; W. S. Lauder, Judge.

Prosecution against Martin O. Hasledahl for embezzlement. Verdict of guilty, and judgment thereon. Defendant brings error. Reversed.M. A. Hildreth, for plaintiff in error. C. A. M. Spencer, Atty. Gen., for the State.

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 11 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 copied from California, and in their construction our labors have been greatly assisted by the opinions of the very able and painstaking court of that state, but in this instance we are unable to follow where that court leads. In Stewart v. People the court say: “What is implied by the clause, ‘and the trial begin anew?’ The title of the chapter which provides for the challenging the jury is: ‘Of proceedings after the commencement of the trial and before judgment.’ We think, within the meaning of the Code, a trial commences when the case is called for trial, unless the trial is then postponed; that everything that transpires in the case after that and before judgment is a part of the trial. That being so, it follows that the defendant was entitled, after the change had been affected, to all the challenges which the law gave him in the first instance. Within that limit he not only had a right to challenge the new juror, but likewise any or all of the original eleven.” To our minds that reasoning goes too far. If the word “trial” in the phrase “and the trial begin anew” includes everything from the time the case was called, then, necessarily, the names of the remaining 11 must go back in the clerk's box to be redrawn. There cannot be 11 jurors in the jury box when the case is called. If the trial is to “begin again” at the calling of the case, necessarily the jury must be impaneled again, and of course must first be discharged from the prior panel. And we think the reasoning in People v. Stewart leads to that result unmistakeably. If the accused has the right to challenge any or all of the remaining 11, then it must be true that there is not an accepted juror in the box. But there were twelve accepted jurors before the one was taken sick, and they could only be relieved from that condition by being discharged. Hence, in every case the practical effect of discharging the one sick juror is to discharge the entire jury, under that construction. But that could not have been the intent of the legislature, because in the same connection it is provided that the court may discharge the sick juror, and swear another to fill his place, or may discharge the entire jury, and impanel another. It does not meet the point to say that, unless the accused challenges the remaining 11, or some of them, they retain their character as jurors. That would always place it in the power of the accused to discharge the entire jury or not, at his election. The law places the election with the court. Moreover, the character of juror cannot attach while the right to challenge remains. Under the English practice when, during the progress of a trial, a juror becomes sick and unable to sit, the jury is always discharged. The names of the 11 men are immediately recalled, and another name taken from the panel to complete the number. The accused is then given all his challenges to the 12, after which each juror or the person substituted by the challenge must be sworn de novo. See Whart. Crim. Pl. & Pr., note to section 508. It thus appears that in England, where the jury is always discharged, the process is precisely the same in effect that is announced in People v. Stewart, when the jury is not discharged.

The word “trial” is sometimes used in a broad sense, including all the steps taken in a case prior to final judgment, but in its restricted sense it includes the investigation of facts only. Jenks v. State, 39 Ind. 9. We think it is used in the restricted sense in the statute under construction. Our statute defines a trial to be “the judicial examination of the issues between the parties, whether they be issues of law or fact.” Comp. Laws, § 5031. A jury trial would be the examination of an issue of fact. The first definition of the word “trial” in Anderson's Law Dictionary is: “The examination of the matter of fact in issue.” Mr. Wharton, in his note on the English practice, already cited, after stating that the jury must be sworn de novo, and charged with the prisoner, adds: “The trial must then begin again.” We think that generally where the word “trial” is used in connection with the jury it means the examination of the issue of fact. The sequence of the wording of the statute would indicate that it is so used. It says: “A new juror may be sworn, and the trial begin anew.” The trial begins anew after the new juror is sworn. The statute uses the singular number,-“juror;” neither “jurors” nor “jury.” Under our practice jurors are sworn separately. Territory v. O'Hare, 1 N. D. 30, 44 N. W. Rep. 1003. We think the statute clearly intends that when the sick juror only is discharged the condition of the remaining 11 is not affected. They stand as accepted and sworn jurors, subject to no challenge, and but one other man is to be sworn as an additional juror to complete the panel. The condition of the jury after the discharge of the sick juror is identical with its condition when but 11 jurors had been secured. The word “trial,” as used in the first part of said section 7401, is certainly used in the restricted, and not the broad, sense. It says, “If before the conclusion of a trial,” etc. Turning to section 7413, we find what course is to be pursued if a juror is taken sick after the jury has retired. Certainly the “trial” mentioned in section 7401 terminates with the termination of the investigation of the facts, otherwise section 7413 would be superfluous. This indicates that the word “trial,” as used in section 7401, is restricted in its significance to the...