I am of the opinion that the discharge of the juror Flint was a matter in the discretion of the court. He had sworn, upon voir dire, that he had not formed or expressed any opinion as to the defendant's guilt or innocence, and that he had no conscientious scruples against the infliction of capital punishment. But upon the examination held after the district attorney moved to dismiss him from the panel it appeared quite clearly that he had several times expressed the opinion that defendant was guilty, but that, if he were on the jury, he would not vote to hang him, and when pressed for a reason why he would not had said that he was opposed to capital punishment. It may be that these remarks were simply idle talk, and had been forgotten by the juror, but if such were not the case, and especially if he did have such conscientious scruples, then certainly he was not a fit juror.
The trial judge was in a better position to determine this fact than we are, and his conclusion thereon is not unsupported by the evidence. It follows, the same as in any other case where a point has to be determined upon conflicting evidence, that the discretion of the trial court cannot be overruled upon appeal. As the juror was properly discharged, the evidence was insufficient to support the plea of former jeopardy thereafter entered by defendant.
I am also of the opinion that while perhaps the court did not commit reversible error in refusing to discharge the entire jury, it should either have done so or have given the defendant his challenges over again, as demanded by him. This would have been substantially in accordance with the rule at common law, which, in the absence of a statute, must be our guide.
State v. Pritchard, 16 Nev. 101, relied upon as justifying the action taken below, does not cover these questions, because there no testimony had been taken, which is particularly referred to as one of the grounds upon which the decision is placed, and because no question was raised concerning the defendant's renewed right to his challenges, which were *Page 120 always given him at common law. If that rule is unsatisfactory, and doubtless it can be improved upon, it should be changed by statute, as has been done in many states.
I also agree with much that is said by Justice BONNIFIELD concerning the proceedings taken against juror Flint, and which could not well have failed to have a prejudicial effect upon the minds of the jurors retained in the case.
For these reasons I concur in the judgment.