Olson, J.
The principal question presented by this appeal is: When one juror becomes ill, after a jury of twelve has been impaneled and sworn to try a criminal cause involving a felony, and the court, at the request of the accused and with the consent of the state, excuses the indisposed juror and proceeds with the trial with the remaining eleven jurors, is the judgment and sentence entered upon the verdict of that jury valid?
The accused were being tried jointly for the crime of burglary in the second degree. On the second day of the trial, after a jury of twelve had been impaneled and sworn, a juror became ill. Counsel for one of the accused urged the court to excuse that juror and proceed with the trial with the remaining jurors. The court so ordered, after both defendants and their counsel stipulated with counsel for the state that it be done, and the jury of eleven returned a verdict of guilty against both defendants.
In this appeal, the defendants contend that the judgment and sentence entered upon that verdict is invalid because (1), in a criminal cause, the accused cannot waive the right to trial by jury guaranteed by Art. I, § 21, of the constitution of the state of Washington, and (2), in any event, the submission of the cause to eleven jurors was beyond the jurisdiction of the court because there is no provision in the law for such a tribunal. Counsel for the accused at the trial did not prosecute this appeal.
It is not necessary, in the decision of this case, to answer defendants’ first contention. We only discuss its subject matter as it relates to the conclusion reached upon the issues the case actually presents.
The constitutional provision in question reads as follows:
[736]*736“The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.” Art. I, § 21.
This provision is a guaranty that the right of trial by jury shall not be impaired by legislative or judicial action. State v. Ellis, 22 Wash. 129, 131, 60 Pac. 136 (1900); see State v. Furth, 5 Wn. (2d) 1, 18, 19, 104 P. (2d) 925 (1940); In re Brandon v. Webb, 23 Wn. (2d) 155, 159, 160 P. (2d) 529 (1945). But, because an accused cannot be deprived of this right, it does not follow that he cannot waive it. State v. Ellis, supra; see Patton v. United States, 281 U. S. 276, 293 et seq., 74 L. Ed. 854, 50 S. Ct. 253, 70 A. L. R. 263 (1930), and In re Ellern, 23 Wn. (2d) 219, 224, 160 P. (2d) 639 (1945). A right which can be waived is, in fact, a privilege.
We cite but a few of our cases holding that an accused can waive a constitutional privilege: Trial by jury entirely, by pleading guilty, In re Brandon v. Webb, supra; trial in the county of the crime, State v. Hardamon, 29 Wn. (2d) 182, 186 P. (2d) 634 (1947); self-incrimination, State v. Jeane, 35 Wn. (2d) 423, 213 P. (2d) 633 (1950); counsel, Thorne v. Callahan, 39 Wn. (2d) 43, 59, 234 P. (2d) 517 (1951).
In 1951, the legislature enacted the following statute (RCW 10.01.060):
“No person informed against or indicted for a crime shall be convicted thereof, unless by admitting the truth of the charge in his plea, by confession in open court, or by the verdict of a jury, accepted and recorded by the court: Provided, That except in capital cases, where the person informed against or indicted for a crime is represented by counsel, such person may, with the assent of the court, waive trial by jury and submit to trial by the court.”
It is not the legislative policy of this state that a jury trial is essential in every case to safeguard the interests of the accused and maintain confidence in the judicial system. The cited enactment is consistent with the idea that persons [737]*737accused of crime have individual rights of election which must be secure. Granting a choice of privileges can in no way jeopardize their preservation. If an accused desires to waive a privilege, our concern should be to assure him that it can be done.
These defendants were not compelled to proceed with eleven jurors. They must have thought it would be to their advantage to do so. The presence of defense witnesses who might not be available later, satisfaction with the personnel of the jury as drawn, a desire not to have the cause delayed, reluctance to re-examine the jurors on voir dire to obtain another jury from the same panel, among other considerations, might explain such a decision by them or by the defendants in any criminal trial.
Whatever the reason, provided he acts intelligently, voluntarily, free from improper influences (as did these accused, who had the advice of counsel), and there being no legislative policy or constitutional mandate prohibiting it, we conclude that an accused can waive his privilege of trial by a jury of twelve and submit his cause to eleven jurors as did these defendants.
The conclusion seems inevitable that, by the waiver of their privilege, these accused did not divest the court of its jurisdiction, a term we have defined as the power to hear and determine a case. State v. Hampson, 9 Wn. (2d) 278, 281, 114 P. (2d) 992 (1941), and cases cited. Otherwise, in no event could an accused exercise his privilege. The denial of that power of election would convert the privilege into an imperative requirement. Patton v. United States, supra, p. 298. The obligation of the state is to assure a trial by a jury of twelve in a criminal case, and not to insist that an accused, against his expressed desire, submit his cause to such a jury or have a mistrial declared. It must follow that the question pertains to the form and manner of the trial, not to the jurisdiction of the court.
Even a partial catalogue of the numerous cases and texts upon these propositions would unduly extend this opinion. Many of them are referred to in Patton v. United States, [738]*738supra. See, also, annotations, 70 A. L. R. 279 (1930), 105 A. L. R. 1114 (1936); 25 Michigan Law Review 695 (1927); the views expressed by Judge Learned Hand in United States ex rel. McCann v. Adams, 126 F. (2d) 774, 775 (1942), and the decision in the same case, Adams v. United States ex rel. McCann, 317 U. S. 269, 275, et seq., 87 L. Ed. 268, 63 S. Ct. 236, 143 A. L. R. 435 (1942). As illustrative of our view, see State v. Kaufman, 51 Iowa 578, 2 N. W. 275 (1879).
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Olson, J.
The principal question presented by this appeal is: When one juror becomes ill, after a jury of twelve has been impaneled and sworn to try a criminal cause involving a felony, and the court, at the request of the accused and with the consent of the state, excuses the indisposed juror and proceeds with the trial with the remaining eleven jurors, is the judgment and sentence entered upon the verdict of that jury valid?
The accused were being tried jointly for the crime of burglary in the second degree. On the second day of the trial, after a jury of twelve had been impaneled and sworn, a juror became ill. Counsel for one of the accused urged the court to excuse that juror and proceed with the trial with the remaining jurors. The court so ordered, after both defendants and their counsel stipulated with counsel for the state that it be done, and the jury of eleven returned a verdict of guilty against both defendants.
In this appeal, the defendants contend that the judgment and sentence entered upon that verdict is invalid because (1), in a criminal cause, the accused cannot waive the right to trial by jury guaranteed by Art. I, § 21, of the constitution of the state of Washington, and (2), in any event, the submission of the cause to eleven jurors was beyond the jurisdiction of the court because there is no provision in the law for such a tribunal. Counsel for the accused at the trial did not prosecute this appeal.
It is not necessary, in the decision of this case, to answer defendants’ first contention. We only discuss its subject matter as it relates to the conclusion reached upon the issues the case actually presents.
The constitutional provision in question reads as follows:
[736]*736“The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.” Art. I, § 21.
This provision is a guaranty that the right of trial by jury shall not be impaired by legislative or judicial action. State v. Ellis, 22 Wash. 129, 131, 60 Pac. 136 (1900); see State v. Furth, 5 Wn. (2d) 1, 18, 19, 104 P. (2d) 925 (1940); In re Brandon v. Webb, 23 Wn. (2d) 155, 159, 160 P. (2d) 529 (1945). But, because an accused cannot be deprived of this right, it does not follow that he cannot waive it. State v. Ellis, supra; see Patton v. United States, 281 U. S. 276, 293 et seq., 74 L. Ed. 854, 50 S. Ct. 253, 70 A. L. R. 263 (1930), and In re Ellern, 23 Wn. (2d) 219, 224, 160 P. (2d) 639 (1945). A right which can be waived is, in fact, a privilege.
We cite but a few of our cases holding that an accused can waive a constitutional privilege: Trial by jury entirely, by pleading guilty, In re Brandon v. Webb, supra; trial in the county of the crime, State v. Hardamon, 29 Wn. (2d) 182, 186 P. (2d) 634 (1947); self-incrimination, State v. Jeane, 35 Wn. (2d) 423, 213 P. (2d) 633 (1950); counsel, Thorne v. Callahan, 39 Wn. (2d) 43, 59, 234 P. (2d) 517 (1951).
In 1951, the legislature enacted the following statute (RCW 10.01.060):
“No person informed against or indicted for a crime shall be convicted thereof, unless by admitting the truth of the charge in his plea, by confession in open court, or by the verdict of a jury, accepted and recorded by the court: Provided, That except in capital cases, where the person informed against or indicted for a crime is represented by counsel, such person may, with the assent of the court, waive trial by jury and submit to trial by the court.”
It is not the legislative policy of this state that a jury trial is essential in every case to safeguard the interests of the accused and maintain confidence in the judicial system. The cited enactment is consistent with the idea that persons [737]*737accused of crime have individual rights of election which must be secure. Granting a choice of privileges can in no way jeopardize their preservation. If an accused desires to waive a privilege, our concern should be to assure him that it can be done.
These defendants were not compelled to proceed with eleven jurors. They must have thought it would be to their advantage to do so. The presence of defense witnesses who might not be available later, satisfaction with the personnel of the jury as drawn, a desire not to have the cause delayed, reluctance to re-examine the jurors on voir dire to obtain another jury from the same panel, among other considerations, might explain such a decision by them or by the defendants in any criminal trial.
Whatever the reason, provided he acts intelligently, voluntarily, free from improper influences (as did these accused, who had the advice of counsel), and there being no legislative policy or constitutional mandate prohibiting it, we conclude that an accused can waive his privilege of trial by a jury of twelve and submit his cause to eleven jurors as did these defendants.
The conclusion seems inevitable that, by the waiver of their privilege, these accused did not divest the court of its jurisdiction, a term we have defined as the power to hear and determine a case. State v. Hampson, 9 Wn. (2d) 278, 281, 114 P. (2d) 992 (1941), and cases cited. Otherwise, in no event could an accused exercise his privilege. The denial of that power of election would convert the privilege into an imperative requirement. Patton v. United States, supra, p. 298. The obligation of the state is to assure a trial by a jury of twelve in a criminal case, and not to insist that an accused, against his expressed desire, submit his cause to such a jury or have a mistrial declared. It must follow that the question pertains to the form and manner of the trial, not to the jurisdiction of the court.
Even a partial catalogue of the numerous cases and texts upon these propositions would unduly extend this opinion. Many of them are referred to in Patton v. United States, [738]*738supra. See, also, annotations, 70 A. L. R. 279 (1930), 105 A. L. R. 1114 (1936); 25 Michigan Law Review 695 (1927); the views expressed by Judge Learned Hand in United States ex rel. McCann v. Adams, 126 F. (2d) 774, 775 (1942), and the decision in the same case, Adams v. United States ex rel. McCann, 317 U. S. 269, 275, et seq., 87 L. Ed. 268, 63 S. Ct. 236, 143 A. L. R. 435 (1942). As illustrative of our view, see State v. Kaufman, 51 Iowa 578, 2 N. W. 275 (1879).
Can these accused now be heard to say that, by waiving this privilege, they injected a fatal defect-into their trial? We think not, for two reasons: (1) A voluntary waiver of a defensive, protective privilege, designed to assure the accused of a fair trial, should not and cannot convert it into an offensive right to have their trial declared invalid; (2) because the questioned action of the trial court does not pertain to its jurisdiction, it must and will be examined under the rules applicable to any other claimed trial error which can be waived. The record shows not only that the court’s action was induced by the accused in this case but also that they did not urge it as error in the trial court, and, in either of these events, a claim of error will not be reviewed on appeal.
Perhaps the proposition can be made more clear by considering an assumed trial conducted like the one at issue but which resulted in an acquittal. If the argument of the accused is sound, the acquitted defendants could be tried again. Reluctance to approve such a result might bring into sharper focus some of the same reasons for denying it which are asserted to sustain the judgment in the case at bar.
Defendants rely upon State v. Ellis, supra, in which the court held a trial like the one in question invalid. Considering the cited enactment of the 1951 legislature authorizing the accused to waive the entire jury, and the reasoning of the later authorities, the Ellis case, in so far as it is inconsistent with this opinion, is overruled. This is a necessary result because of our conclusion that our question is one of the manner and form of procedure, rather than of jurisdiction.
[739]*739State v. Karsunky, 197 Wash. 87, 84 P. (2d) 390 (1938), and State v. McCaw, 198 Wash. 345, 88 P. (2d) 444 (1939), which concerned the conflict in the then existing statutes pertinent to the question of jury trials in criminal cases, are not controlling upon the issues in the case at bar. We need not decide the effect of the cited 1951 enactment upon the questions they presented.
We have examined the other assignments of error urged by the accused and find them to be without merit.
The judgment is affirmed.
Schwellenbach, C. J., Mallery, Hill, Grady, and Finley, JJ., concur.