State v. Thienes

*56 MR. CHIEF JUSTICE CALLAWAY delivered the opinion of the court. The two main questions sought to be presented by this appeal have been resolved against the appellant in two recent eases, that respecting the charge of former conviction and the function of the jury with respect thereto, in State v. O’Neill, 76 Mont. 526, 248 Pac. 215, and that as to the authority of counsel, in State v. Turlok, 76 Mont. 549, 248 Pac. 169. It is true that in the Turlolc Case counsel but consented to a continuance of the case over the term. The plea of former jeopardy in the instant case is based upon the fact that upon the first trial of the defendant the jury was discharged on account of the necessary absence of a juror because of serious illness in his family. The record shows that defendant’s counsel stipulated in open court in the presence of the defendant that the jury might be discharged and the cause continued until the next succeeding jury term of court. In view of what was said in the Turlock Case there cannot be any question as to counsel’s authority to take the action he did. Other assignments of error have been examined and found to be without merit. The judgment is affirmed. Affirmed. *57 Associate Justices Stark and Matthews and Honorable Theodore Lentz, District Judge, sitting in place of Mr. Justice Holloway, disqualified, concur. Mr. Justice Galen, being absent, did not bear tbe argument and takes no part in tbe foregoing decision.