(a) The jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, except: (1) By consent of both parties, entered upon the minutes;
COL120106 VERDICT OR F INDING (2) At the expiration of such time as the court may deem proper, if it satisfactorily appears that there is no reasonable probability that the jury can agree; or (3) If one of the jurors becomes ill, or by any other accident or cause, the jury is prevented from continuing its deliberations. (b) In any case, where a jury is discharged pursuant to Subsection (a), the cause may be tried again. NOTE: Section 105.22 is new. It is substantially the same as §§ 1140 and 1141 of the California Penal Code. However, it provides an additional exception for discharge of the jury where a juror becomes incapacitated during deliberations. Under California law, an alternate juror would be permitted to be seated in such circumstances, under § 85.45 this is not permitted and the jury must be discharged and a mistrial declared. See § 85.45 and Note thereto. See generally B. Witkin, California Criminal Procedure Judgment and Attack in Trial Court §§ 525-529 (1963, Supp. 1973); 8 Moore, Federal Practice &31.04 (1974). But see § 85.15 (parties may stipulate to jury less than twelve).