One member of the court being incapacitated by illness, this court stands three to three on the question of whether or not the error committed by the trial court in its charge to the jury was prejudicial to the defendant. Therefore the order of the trial court is affirmed without opinion.
On Application For Reargument.
On February 8, 1935, the following opinion was filed:
Per Curiam.
Rule 13 of this court [190 Minn, xxxix] provides in part:
“Whenever any member of the court is not present at the oral argument of a cause, such cause shall be deemed submitted to such member of the court on the record and briefs therein.”
In our opinion this rule does not require that a matter or case must be submitted to all seven justices. If one justice is ill or incapacitated at the time that a particular case is argued, or where there is no argument, at the time that a particular case is considered by the court in closed session, then he is not obliged to *169take part in the decision thereof, but is at liberty to take no part. If this were not the rule, the business of the court could not well go on if one member became seriously ill or incapacitated. Rule 18 is not mandatory on any particular justice. An absent justice may take part in a decision if he so desires, but he is not required so to do.
Denied.