The opinion of the court was delivered by
Breaux, J.The defendants were jointly indicted, tried and convicted of murder.
The sentence was annulled at the last term of court at Opelousas and the case remanded for a new trial. 45 An. 1137. A severance having been granted on the district attorney’s election the defendant Nash was placed on trial.
His counsel, who also represented the co-defendant, Barnett, moved that the case against him be tried, and stated that they were not ready to try Nash.
To the court’s refusal to interfere and to grant the application for postponement the defendant Nash excepted, and urged that he could not safely go to trial without the testimony of his co-defendant, whose testimony would be to him more material and important after the trial, whether acquitted or convicted, than when the charge was pending against him.
The venire for the term having been exhausted, the defendant applied for the summoning of talesmen outside of the limits of Shreveport and of the Fourth Ward, in which he urged there is a deep seated prejudice, that would render it impossible for him to secure an impartial jury.
The jury had been empaneled to try the case and placed in the sherff’s custody, and remained from the evening on which they had been so empaneled until the day following, when the district attorney in a written application moved for ' the discharge of one of the jurors on the ground that on his *197voir dire, in answer to questions propounded to him by the counsel representing the State, he had testified and said, among other things, that he had no conscientious scruples against finding a verdict that would entail capital punishment; that in truth he was opposed to capital punishment, and so announced to several persons shortly before he was called into the jury box, which fact was unknown to the State, and that by false statements he was accepted and sworn.
The court, after hearing evidence, granted the application and discharged the juror.
The defendant filed an application for his discharge on the ground of former jeopardy.
The court refused to grant the application and to discharge the defendant.
After the court had discharged the juror, C. A. Hays, and had refused to discharge the defendant and had ruled that the district attorney could have another juror selected, the defendant claimed the right of peremptory challenge, which was refused by the court.
The court held that the defendant had exhausted his peremptory challenges and that the number of challenges could not be increased under any circumstances.
Upon the trial application was made by counsel for the defendant to have reduced to writing and made part of the record all the evidence bearing upon the question of overt act, or hostile demonstration at the. time or preceding the homicide, for the purpose of laying the foundation enabling him to prove threats, communicated and uncommunicated, against his life, and to prove the character of the deceased as a dangerous, quarrelsome and vindictive man.
The defendant alleged error'to his great injury and prejudice and the violation of his legal and constitutional right on the part of the court in not having maintained his plea of “former jeopardy” and offered to file an application for rehearing on his motion to discharge on the ground of former jeopardy, which the court refused to receive.
An appeal was applied for from the court’s action in refusing to discharge the accused.
He was found guilty as charged. A new trial and a motion in ar*198rest of ¡judgment were overruled. Prom the verdict, sentence and judgment, the defendant prosecutes this appeal.
Order of the Trial.
The records do not disclose that the case was called out of the order of fixing, irregularly to the prejudice of the defendano. The district attorney’s action was within the court’s direction and control and involves the performance of a duty with which it is not improper to entrust him.
There was no reason suggested to depart from the general rule conferring upon him the right to determine the order in which criminal cases shall be tried. Relative to the postponement, the application involved a postponement to await the result of a trial of a co-defendant, after a severance has been granted. Such a postponement in order that an accused may be called as a witness, is not a legal right. If there be any advantage, it is not one which can control the State in the trial of cases.
A motion for postponement to await the result of a trial was refused in the case of State vs. Ford, 37 An. 456.
Refusal of Court to Order Tales Jurors from Country Wards.
The court, in declining to issue the order applied for and to designate localities or wards from which to select talesmen, is sustained by the law upon the subject.
In the reasons for the ruling, it is stated that there was nothing to show that any feeling, opinion or prejudice existed as would prevent a fair trial if the tales jurors were selected in the manner pointed out by law.
Pormer Jeopardy.
The defendant, through his counsel, urges that he was in legal custody when the juror Hayes was discharged, as made apparent by the records, and that he may now claim to be dismissed from the cause and be no more prosecuted for the same offence.
We shall, in the first place, consider the decisions of this State on the subject.
In State vs. Paterno, 43 An. 514, the question was not similar to that under consideration.
The nolle prosequi upon which the accused based his plea of former jeopardy was entered during the empaneling of the jury. The *199utterances of the court were not particularly directed to a question similar to that now presented and did not seek to determine when jeopardy begins.
In State vs. Costello, 11 An. 283, the court says that reason and authority sustain the right of the court to discharge a jury in cases of evident physical or moral necessity.
The court approvingly quotes from Justice Kent:
“Either the court must determine when it is requisite to discharge, or the rule must be inflexible, that after the jury are sworn and charged, no other jury can in any event be sworn and charged in the same. The moment cases of necessity are admitted to form exceptions, that moment a door is opened to the discretion of the court to judge of that necessity and to determine what combination of circumstances will create one.” And refers also to Justice Story, who lays down a similar doctrine.
The jurisprudence of our State, says the court, is in conformity with these views.
In State vs. Deskin, 34 An. 919, after three jurors had been sworn and accepted, the trial judge, over the objection of the prisoner, propounded to each of the sworn jurors the usual questions on that subject, and two of them answering that they had scruples, they were excluded for cause.
The court’s action was sustained on appeal. The decision is guarded and manifests a desire not to extend the principle too far, in the direction of the court’s discretion to judge of the necessity of discharging a juror after he has been sworn and accepted.
The court says in that case:
“ We think it would be a mockery of common sense to hold that the court would be bound to close its ears to the information and to permit the trial to proceed before an incompetent jury, who could not And an unqualified verdict in favor of the State under any circumstances, however clearly the law and the facts might sustain and require it.”
In State vs. Moncla, 39 An. 868, after the twelve jurors had been selected and empaneled, one 'of the number announced that he was sick. The judge ordered the discharge of the juror and directed the sheriff to call another juror in his place. Defendant’s twelve challenges having been exhausted, defendant objected to the discharge of the juror.
*200The court decided that it was competent for the trial judge to add another juryman. The court in that case says:
“It is difficult to conceive of any reason why a different rule should prevail if a sworn j uror should be taken sick when the eleventh juror is sworn, than if his sickness should happen after the twelfth juror had been sworn, and before any other proceedings had been taken.
“We should be loth to recognize so flimsy a distinction.”
In Thompson and Merriam, Sec. 273, the doctrine is announced that the court is not bound to suffer the case to pi’oceed after the jury have been empaneled, when informed of the fact going to the disqualification of a jurorfrom which it is probable that the verdict may be set aside.
That the obnoxious juror may be excluded, and that too although he has been sworn, if no evidence has been introduced. The prisoner can avail himself of the plea of once in jeopardy, only under such circumstances as would enable him to sustain the plea of autrefois acquit or convict. State vs. Blackman, 35 An. 484. State vs. Ritchie, 3 An. 715.
Mr. Wharton announces that “in Illinois it was held correct, in a capital case, to strike off a juryman after the jury were sworn on the ground that he was an alien.
“The same course has been taken in Pennsylvania in a case where the court, after the jury had been sworn, struck off a juryman on the ground that he was incompetent from irreligión or prejudice.
“It is not contended that this power is given to the court to be exercised arbitrarily or without good cause to believe that interference is necessary to prevent great injustice to one side or the other.
“It is to be used alike for the protection of the public and for the security of the prisoner in his right to an impartial trial; alike when the juror is so biased either against the prisoner or against the government that he is disqualified to serve on the panel.” See also Commonwealth vs. McCormick, 39 American Rep. 423.
Jeopardy can not begin before the case is opened before the jury; nor before the indictment is read or the examination into the case begins. At what point thereafter it begins it is not necessary to decide in this case. Mr. Wharton says that however discordant the cases may be as to what necessity justifies a discharge, they unite in the position that until the jury are “charged” with the *201offence on an issue duiy framed, that is to say, until the jury is sworn, and the case committed to them, the jeopardy does not begin. Until this period the defendant is not technically in jeopardy. Even a juror who is found to be incompetent after swearing, but before opening the case, may be set aside without vitiating the procedure.
The accused had not been placed in jeopardy and has no right to his discharge on that ground.
The court, in State vs. Castello, 11 An. 288, emphatically announces that an accused is not put in jeopardy upon the mere empaneling of a jury, before a word of testimony has been heard against him and before the jury has received any information concerning the charge against him by reading the indictment.