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*384ness 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 introduction of all the evidence admitted in the case, the assistant district attorney argued the case to the jury, and the attorney for the defendant declined to reply, whereupon the assistant district attorney claimed the right to argue the case to the jury, which claim the court denied; the assistant district attorney thereupon stated to the court, and in the presence and hearing of the jury, that ‘the defense was endeavoring to prevent the prosecution from arguing the truth of this charge to the jury,’ to which statement defendant then and there excepted, and which statement defendant assigns as error.”
There was no occasion for the remark, and it would have been better for the district attorney to have refrained from making it, but we cannot see how the defendant’s case could be prejudiced by such a piece of badinage.
Judgment and order appealed from affirmed.
McFarland, J., Fox, J., Paterson, J., Thornton, J., Works, J., and Beatty, C. J., concurred.