(dissenting).
I dissent, primarily because it appears that the appeal sought here does not fall in any slot found in the highly restrictive statute permitting the state to appeal in certain instances.1
Secondly, all the state asks in its brief is that “this court reaffirm the principles set forth in the case of State v. Thatcher and restate said principles.” Affirming them appears innocuous but restating them when readily they can be examined 2 would be an unwarranted repetition. The main opinion properly refrained from restating them, rendering this appeal moot, in my opinion.
Thirdly, if the court erred in any respect it was for failing to follow the interdiction of Title 77-33-10, U.C.A.1953,3 by not sending the jury back for further deliberation after one of the veniremen recanted when the jury was polled. The fact, however, that one of the jurymen *174changed his mind before the verdict had been recorded, lends substance and merit to the dismissal, the motion therefor designedly having been reserved by the court. Such fact certainly adds no weight to appellant’s contention that the court erred, it appearing obvious that it reflected an indisposition on the part of the jury to conclude unanimously that the accused was guilty beyond a reasonable doubt. Under the circumstances we cannot say that the trial court exercised its discretion in an arbitrary or capricious manner.
I believe the appeal should be dismissed.
. Title 77-39-4, Utah Code Annotated 1953: “An appeal may be taken by tlie state: (1) From a judgment of dismissal in favor of the defendant upon a motion to quash the information or indictment. (2) From an order arresting judgment. (3) From an order made after judgment affecting the substantial rights of the state. (4) From an order of the court directing the jury to find for the defendant.”
. 1945, 108 Utah 63, 157 P.2d 258.
. “Polling the jury. — When a ■ verdict is rendered, before it is recorded, the jury *174may be polled at the reguest of either party, in which case they must be severally asked whether it is their verdict, and if any one answers in the negative, the jury must be sent out for further deliberation.”