After the jury had been impaneled and sworn, and the indictment read to them, they were discharged without verdict rendered, owing to the judge being ill and not likely to be well enough for several days to hold court. Defendants now claim that they were put in jeopardy by said mistrial, and cannot be put in jeopardy a second time, and should be discharged. It is well recognized that there has been no jeopardy when the discharge of the jury has been from necessity. State v. Robinson, 46 La. Ann. 773, 15 South. 146. And it is clear that there is such necessity when, as in the present case, the trial being for a capital offense, the jury cannot be allowed to separate, and would have to be kept together indefinitely to await the recovery of the judge. 12 Cyc. 271; People v. Hunckeler, 48 Cal. 334. No provision has been made by our law for some one else to take the place of the judge in such a case.
Judgment affirmed.