By the Court,
Beatty, J.:
A writ of certiorari was issued out of this court upon petition of Borowsky, commanding the sixth district court to certify its proceedings in the case of the State of Nevada v. M. Borowsky. The petitioner was indicted by.the grand jury of Eureka county for a misdemeanor in the office of public administrator. He pleaded not guilty; was tried, by 1ns own consent, by a jury of eleven men; was convicted and sentenced to pay a fine of two thousand dollars, and to be imprisoned till the fine was-paid, at the rate of one day’s imprisonment for each two dollars of the fine.
As there is no appeal in this class of cases from the judgment of the district court, nor other plain, speedy and adequate remedy for an illegal conviction, there is no doubt that the petitioner is entitled in this proceeding to have the j udgment against him annulled or modified if the district court has exceeded its jurisdiction; and he claims that it did exceed its jurisdiction in two ways:
Eirst. In trying and convicting him upon an indictment which charges no offense, and therefore, of course, no offense of which the district court could'have jurisdiction; and.
[124]*124Second. In adjudging him guilty and imposing sentence without the verdict of a legal jury.
The indictment is founded upon the following provision of the law concerning public administrators: “For any willful misdemeanor in office, any public administrator may be indicted, tried, and, if found guilty, fined in any sum not exceeding two thousand dollars, and removed from office.” (Comp. L., sec. 3029.)
It shows that Borowsky was the lawful incumbent of the office of public administrator of Eureka county from May, 1873, to December, 1874; that in January, 1874, he received, by virtue of his office, three thousand dollars and upwards of property and moneys belonging to the estate of Adam Hamilton, deceased, and that in March, 1875, “he did willfully, unlawfully, and corruptly appropriate to his own use of the moneys of said estate * * * two thousand one hundred and ninety-nine dollars and nineteen cents, and did then and afterwards willfully and unlawfully refuse to pay over said moneys upon the order of the district court.
The argument in behalf of the petitioner is that the statute upon which this indictment is founded does not define any offense, and, if it does, that the indictment does not charge the offense defined by the statute. To support the first proposition he says: A misdemeanor is a crime, and a crime is defined to be an act or omission forbidden by law and to which is annexed, on conviction, some definite penalty. (Comp. L., sec. 1675.) But there is no act or omission of a public administrator to which any penalty has been affixed by law, and consequently there is no such thing as a misdemeanor in that office. The fault of this argument, I think, consists in attributing to the word misdemeanor, as used in the statute, its technical sense of a species of crime. It is evident, I think, that it is used in its more comprehensive sense of misbehavior, misconduct, violation of duty; for otherwise the word “willful,” by which it is qualified, becomes entirely' superfluous. Every crime is necessarily willful, but misconduct, or violation of duty, is not. Taken in the latter sense, the word misdemeanor is properly qualified by the word willful; in the former signification, the [125]*125expression involves the worst sort of tautology. Besides, in the one case, the whole provision becomes utterly meaningless, while in the other the construction is plain and sensible. The statute makes'a willful misdemeanor (in its popular sense of misconduct), a technical misdemeanor or crime by attaching the penalties of fine and removal from office. Its object was not to impose additional penalties in the case of misdemeanors already defined, but to make that criminal which before had not been so, by the ordinary form of attaching a penalty, and thereby forbidding it. Every willful violation of his official duty by a public administrator is, therefore, a misdemeanor, punishable by a fine of not exceeding two thousand dollars and removal from office. Of such offenses, it is not questioned that the district court has jurisdiction.
But does this indictment charge the offense defined by the statute ? • Petitioner argues that it does not, because it shows that his term of office had expired before the misappropriation of the money, and therefore it could not have been a misdemeanor in office. That the statute is intended only to apply to those Avho are incumbents of the office at the time of the commission of the offense he contends is proved not only by its language, but by the fact that one of the prescribed penalties is removal from office, which of course cannot be imposed upon one whose term has expired. I think, however, the argument is inconclusive. The language of the act is, “may be fined, etc., and removed from office.” The latter part of the penalty of course could not be enforced if the incumbency of the office had expired before conviction, but that is no reason why the fine should not be imposed. If Borowsky, after the expiration of his term, had been indicted for embezzling money before its expiration, it would scarcely have been' argued that the statute did not apply merely because he could not be removed from office. And yet the reason assigned would go as far to sustain that proposition as the other. This shows that, if the argument proves anything, it proves too much, and consequently that it proves nothing. The question, however', still remains upon the language of the act, [126]*126Is it a “misdemeanor in office” to embezzle money received ex officio after tbe term of tlie officer has expired? To my mind it seems clear that it is. It is one of the official duties of every public officer at or after the expiration of his term of office to pay over to his successor or other proper recipient all funds received and held by him in his official capacity, and a refusal to do so, on proper demand being made, is a violation of his official duty. The indictment in this ease shows such a refusal, and charges it to have been willful. It therefore comes fully up to the statute, if “ willful misdemeanor in office” means, as it clearly does, nothing more nor less than willful violation of official duty. This view is strengthened by the consideration that a public administrator is an officer who virtually continues in office an indefinite period after the nominal expiration of his term. His official duty is simply to administer upon estates, in which he is entitled to administration, according to law. (Comp. L., sec. 3025.) After his term expires he simply ceases to be entitled to take out letters of administration in new cases, but he continues to administer, or at least he continues officially chargeable in respect to the estates in which he has received letters, until he is regularly discharged by the district court. Until he is so discharged it is always his duty as an officer to pay over moneys on the order of the court (Comp. L., sec. 3027), and embezzlement of the money of an estate is such misconduct as authorizes the district court summarily to suspend his functions. (Comp. L., sec. 763.)
My conclusion, in view of these provisions, is, that the indictment does charge the petitioner with an offense within the jurisdiction of the district court.
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By the Court,
Beatty, J.:
A writ of certiorari was issued out of this court upon petition of Borowsky, commanding the sixth district court to certify its proceedings in the case of the State of Nevada v. M. Borowsky. The petitioner was indicted by.the grand jury of Eureka county for a misdemeanor in the office of public administrator. He pleaded not guilty; was tried, by 1ns own consent, by a jury of eleven men; was convicted and sentenced to pay a fine of two thousand dollars, and to be imprisoned till the fine was-paid, at the rate of one day’s imprisonment for each two dollars of the fine.
As there is no appeal in this class of cases from the judgment of the district court, nor other plain, speedy and adequate remedy for an illegal conviction, there is no doubt that the petitioner is entitled in this proceeding to have the j udgment against him annulled or modified if the district court has exceeded its jurisdiction; and he claims that it did exceed its jurisdiction in two ways:
Eirst. In trying and convicting him upon an indictment which charges no offense, and therefore, of course, no offense of which the district court could'have jurisdiction; and.
[124]*124Second. In adjudging him guilty and imposing sentence without the verdict of a legal jury.
The indictment is founded upon the following provision of the law concerning public administrators: “For any willful misdemeanor in office, any public administrator may be indicted, tried, and, if found guilty, fined in any sum not exceeding two thousand dollars, and removed from office.” (Comp. L., sec. 3029.)
It shows that Borowsky was the lawful incumbent of the office of public administrator of Eureka county from May, 1873, to December, 1874; that in January, 1874, he received, by virtue of his office, three thousand dollars and upwards of property and moneys belonging to the estate of Adam Hamilton, deceased, and that in March, 1875, “he did willfully, unlawfully, and corruptly appropriate to his own use of the moneys of said estate * * * two thousand one hundred and ninety-nine dollars and nineteen cents, and did then and afterwards willfully and unlawfully refuse to pay over said moneys upon the order of the district court.
The argument in behalf of the petitioner is that the statute upon which this indictment is founded does not define any offense, and, if it does, that the indictment does not charge the offense defined by the statute. To support the first proposition he says: A misdemeanor is a crime, and a crime is defined to be an act or omission forbidden by law and to which is annexed, on conviction, some definite penalty. (Comp. L., sec. 1675.) But there is no act or omission of a public administrator to which any penalty has been affixed by law, and consequently there is no such thing as a misdemeanor in that office. The fault of this argument, I think, consists in attributing to the word misdemeanor, as used in the statute, its technical sense of a species of crime. It is evident, I think, that it is used in its more comprehensive sense of misbehavior, misconduct, violation of duty; for otherwise the word “willful,” by which it is qualified, becomes entirely' superfluous. Every crime is necessarily willful, but misconduct, or violation of duty, is not. Taken in the latter sense, the word misdemeanor is properly qualified by the word willful; in the former signification, the [125]*125expression involves the worst sort of tautology. Besides, in the one case, the whole provision becomes utterly meaningless, while in the other the construction is plain and sensible. The statute makes'a willful misdemeanor (in its popular sense of misconduct), a technical misdemeanor or crime by attaching the penalties of fine and removal from office. Its object was not to impose additional penalties in the case of misdemeanors already defined, but to make that criminal which before had not been so, by the ordinary form of attaching a penalty, and thereby forbidding it. Every willful violation of his official duty by a public administrator is, therefore, a misdemeanor, punishable by a fine of not exceeding two thousand dollars and removal from office. Of such offenses, it is not questioned that the district court has jurisdiction.
But does this indictment charge the offense defined by the statute ? • Petitioner argues that it does not, because it shows that his term of office had expired before the misappropriation of the money, and therefore it could not have been a misdemeanor in office. That the statute is intended only to apply to those Avho are incumbents of the office at the time of the commission of the offense he contends is proved not only by its language, but by the fact that one of the prescribed penalties is removal from office, which of course cannot be imposed upon one whose term has expired. I think, however, the argument is inconclusive. The language of the act is, “may be fined, etc., and removed from office.” The latter part of the penalty of course could not be enforced if the incumbency of the office had expired before conviction, but that is no reason why the fine should not be imposed. If Borowsky, after the expiration of his term, had been indicted for embezzling money before its expiration, it would scarcely have been' argued that the statute did not apply merely because he could not be removed from office. And yet the reason assigned would go as far to sustain that proposition as the other. This shows that, if the argument proves anything, it proves too much, and consequently that it proves nothing. The question, however', still remains upon the language of the act, [126]*126Is it a “misdemeanor in office” to embezzle money received ex officio after tbe term of tlie officer has expired? To my mind it seems clear that it is. It is one of the official duties of every public officer at or after the expiration of his term of office to pay over to his successor or other proper recipient all funds received and held by him in his official capacity, and a refusal to do so, on proper demand being made, is a violation of his official duty. The indictment in this ease shows such a refusal, and charges it to have been willful. It therefore comes fully up to the statute, if “ willful misdemeanor in office” means, as it clearly does, nothing more nor less than willful violation of official duty. This view is strengthened by the consideration that a public administrator is an officer who virtually continues in office an indefinite period after the nominal expiration of his term. His official duty is simply to administer upon estates, in which he is entitled to administration, according to law. (Comp. L., sec. 3025.) After his term expires he simply ceases to be entitled to take out letters of administration in new cases, but he continues to administer, or at least he continues officially chargeable in respect to the estates in which he has received letters, until he is regularly discharged by the district court. Until he is so discharged it is always his duty as an officer to pay over moneys on the order of the court (Comp. L., sec. 3027), and embezzlement of the money of an estate is such misconduct as authorizes the district court summarily to suspend his functions. (Comp. L., sec. 763.)
My conclusion, in view of these provisions, is, that the indictment does charge the petitioner with an offense within the jurisdiction of the district court.
The remaining question is, Did the court' exceed its jurisdiction in pronouncing sentence upon the verdict of eleven jurors, the petitioner having consented to be tried by that number ?
There is no doubt that he was entitled to be tried by a jury of twelve if he had demanded it. The question is whether his consent to be tried by eleven could authorize the court to pronounce sentence upon their verdict. If, as [127]*127his counsel argues,-the verdict of eleven is the same thing as no verdict at all, it would seem to follow that the court exceeded its authority, for in that case an agreement by the defendant to be tried by eleven jurors would be equivalent to waiving a jury trial, and it seems to be inched in the language of the constitution (art. 1, sec. 3) and expressly enacted in the Iuav (Comp. L., secs. 1679, 1687) that on the trial of an indictment a jury cannot be waived. There is certainly much apparent and perhaps real force in the argumeht that a trial by eleven jurors is no jury trial, but there is very strong authority for holding the defendant estopped in a case like this from saying that it is not, and in my opinion it ought to be so held if there is any reasonable ground for such a decision. To hold otherwise -would seem to involve the conclusion that if a verdict of.guilty does not convict, a verdict of not guilty does not acquit, and that in the latter case the defendant might be tried again perhaps after his witnesses had gone beyond his reach, and in a case, perhaps where the very reason of his waiving a full panel of jurors was to prevent a postponement- of his trial and the loss of important testimony. These considerations, it is true, do not meet the argument, but they indicate the unjust and harsh consequences involved in the position contended for and the motives which may legitimately actuate a court in inclining to an opposite conclusion.
The conclusion reached by this court in The State v. McClear, decided during the last term, is that the right of trial by jury means the right to be tried by twelve impartial jurors. That they should be .impartial is just as essential to the constitution of the jury as that they should be twelve in number, and there is no principle upon which a defendant can be held capable of waiving the disqualification of a juror for bias, which will not include the power of consenting to a smaller number than twelve. Yet it has been held in numerous cases in other states, and in the Case of Anderson (4 Nev. 265), in this state, that the defendant is bound by his waiver of that objection. And where a juror has been properly challenged for cause, and the challenge erroneously overruled and the juror sworn, the error [128]*128seems to be cured by tbe refusal of the defendant to renew bis challenge when offered tbe privilege by tbe court. (Gardiner v. People, 6 Parker Cr. R. 195.) These authorities have a bearing upon the question, but there are others more directly in point. Tbe case of the Commonwealth v. Dailey (12 Cush. 80), was decided by Chief Justice Sbaw, and is directly in point, to the effect that a defendant indicted for a misdemeanor may be tried by eleven jurors if be consents, and that sucb consent is not a waiver of a jury trial. Tbe reasons given in tbe opinion and tbe authorities cited, fully sustain the decision. (See also 1 Metc. (Ky.) 365; 2 Id. 1; 2 Paine C. C. 578; 28 Ga. 576.)
The case of Cancemi v. The People (18 N. Y. 128), is opposed to the decision of Chief Justice Shaw, in Massachusetts, and is followed and approved in Hill v. The People, in Michigan (16 Mich. 354). But both of these were cases of murder, and the weight of authority seems to he that, in prosecutions for misdemeanors at least, the court may, by the defendant’s consent, proceed to try him with less than the full number of jurors. I am satisfied that in so deciding there is no injustice done in this case, nor risk of injustice in others. It rests with the defendant to protect himself by insisting upon his right, or by simply not waiving it.
The proceedings under review should be affirmed, and it is so ordered.