Wade, 0. J.
This is an indictment for murder. During the progress of the trial, one of the jurymen was excused on account of sickness in bis family, and thereupon, with the consent of the defendahts, the trial proceeded to a final conclusion before the remaining eleven .. jurymen, who returned into' court a verdict against the defendants of murder in the first degree.
Had the defendants, with the consent of the prosecution and the court, in a capital case, the right or author-' ity to waive a trial before a jury of twelve men?
A common law jury consists- of twelve persons. That is the jury secured and guarantied by the constitution. By the law of the land, a jury of twelve persons forms a part of the tribunal before whom a defendant charged with a capital crime is to be tried. Gan a defendant, on his own motion, change the tribunal and secure to himself a trial before a jury not authorized by and unknown to the law?
We know of no authority authorizing anything of the kind in a capital case. Instances may be found in the .books in cases of misdemeanors, and also, but more rarely, in cases of felonies, where it has been held that a defendant might waive his right to a jury of twelve and consent to be tried by a less number; but the weight ' of authority in cases of felony is clearly against the proposition.
The law has established certain tribunals, with defined powers and forms of proceeding, for the trial of persons charged with crime. Security to the defendant and to the public is only found in a strict compliance with the law of the land. Jurisdiction comes by following the law. Disorder and uncertainty follow a departure therefrom. Neither the prosecution or the defendant, by any act of their own, can change or modify the law by which criminal trials are controlled.
If, with the consent of the court and the prosecution, the defendant may have a trial with one juryman less than a constitutional jury, why, with like consent, [169]*169might he not have a tidal with one juryman more than a constitutional jury? If, by his own act, the defendant might take one from a lawful jury, we do not see why he might not add one thereto. In either case there would be a failure of jurisdiction, because jurisdiction attaches and makes valid a verdict when rendered by a jury, and a jury is twelve men.
In civil actions the statute expressly provides that in case a juryman becomes sick and is excused, the trial, with the consent of the parties, may proceed before the remaining eleven jurymen, but even in civil actions this could not be done except by virtue of a statute authorizing it, and hence the statute was enacted. In the absence of a statute consent would not confer jurisdiction. By the consent of the court, prosecution and defendant, a criminal trial ought not to be converted into a mere arbitration.
In the case of Cancemi v. The People, 18 N. Y. 136, the court says: “ Criminal prosecutions involve public wrongs,” a breach of public rights and duties which affect the whole community, considered as a community, in its social and aggregate capacity. 3 Bl. Com.; 2 id. 4, 5. . The end they have in view is the prevention of similar offenses, not atonement or expiation for crime committed. Id. 11. The penalties or punishments for the enforcement of which they are a means to the end are not within the discretion or control of the parties accused; for no one has a right, by his own voluntary act, to surrender his liberty or part with his life. The state, the public, have an interest in the preservation of the liberties and the lives of the citizens, and will not allow them to be taken away “without due process of law” (Const, art. I, sec. 6), when forfeited, as they may be, as a punishment for crime. .Criminal prosecutions proceed on the assumption of such a forfeiture, which, to sustain them, must be ascertained and declared as the law has prescribed. . . . These considerations [170]*170make it apparent that the right of a defendant in a criminal prosecution to affect, by consent, the conduct of the case, should be much more limited than in civil actions. It should not be permitted to extend so far as to work radical changes in great and leading provisions as to .the organization of the tribunals or the mode of proceeding prescribed by the constitution and the laws.
Effect may justly and safely be given to such consent in many particulars, and the law does, in respect to various matters, regard and act upon it as valid. Objections to jurors may be waived; the court may be substituted for triers to dispose of challenges to jurors; secondary in place of primary evidence may be received; admission of facts are allowed; and in similar particulars, as well as in relation to 'mere formal proceedings generally, consent will render valid what without it would be erroneous. . . . But when issue is joined upon an indictment, the trial must be by the tribunals, and in the mode which the constitution and laws provide without any essential change. The public officer prosecuting for the people has no authority to consent to such a change, nor has the defendant. Applying the above reasoning to the present case, the conclusion necessarily follows that the consent of the plaintiff in error to the withdrawal of one juror, and that the remaining eleven might render a verdict, could not lawfully be recognized by the court at the circuit, and was a nullity. If a deficiency of one juror might be waived, there appears to be no good reason why a deficiency of eleven might not be; and it is difficult to say why, upon the same principle, the entire panel might not be dispensed with, and the trial committed to the court alone. It would be a highly dangerous innovation in reference to criminal cases, upon the ancient and invaluable institution of trial by jury, and the constitution and laws establishing and securing that mode of trial, for the court to allow of any number short of a full panel of twelve jurors, and we think it ought not to be tolerated.
[171]*171In the case of The State v. Mansfield, 41 Mo., Wagner, J., says: “A jury must consist of twelve men, no more, no less; no other number is known to the law, and they must appear upon the record to have rendered their verdict.” Rex v. St. Michaels, 2 Blackst. 719; Dixon v. Richards, 2 How. 771; Jackson v. State, 6 Blackf. (Ind.) 461; Brown v. State, id. 561. The petit jury, says Chitty, must consist of precisely twelve, and is never to be more or less, and this fact it is necessary to insert upon the record. If, therefore, the number returned be less than, twelve, any verdict must be ineffectual, and the judgment will be reversed on error. 1 Chit. Crim. Law, 505.
After commenting upon the reasons given in the case of Cancemi v. The People, above cited, Judge Wagner further says: “Another good and sufficient reason, it occurs to us, is, that the prisoner’s consent cannot change the law. His right to be tried by a jury of twelve men is not a mere privilege; it is a positive requirement of the law. He can unquestionably waive many of his legal rights or privileges. He may agree to certain facts and dispense with formal proofs; he may consent to the introduction of evidence not strictly legal, or forbear to interpose challenges to the jurors; but he has no power to consent to the creation of a new tribunal unknown' to the law to try his offense.
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Wade, 0. J.
This is an indictment for murder. During the progress of the trial, one of the jurymen was excused on account of sickness in bis family, and thereupon, with the consent of the defendahts, the trial proceeded to a final conclusion before the remaining eleven .. jurymen, who returned into' court a verdict against the defendants of murder in the first degree.
Had the defendants, with the consent of the prosecution and the court, in a capital case, the right or author-' ity to waive a trial before a jury of twelve men?
A common law jury consists- of twelve persons. That is the jury secured and guarantied by the constitution. By the law of the land, a jury of twelve persons forms a part of the tribunal before whom a defendant charged with a capital crime is to be tried. Gan a defendant, on his own motion, change the tribunal and secure to himself a trial before a jury not authorized by and unknown to the law?
We know of no authority authorizing anything of the kind in a capital case. Instances may be found in the .books in cases of misdemeanors, and also, but more rarely, in cases of felonies, where it has been held that a defendant might waive his right to a jury of twelve and consent to be tried by a less number; but the weight ' of authority in cases of felony is clearly against the proposition.
The law has established certain tribunals, with defined powers and forms of proceeding, for the trial of persons charged with crime. Security to the defendant and to the public is only found in a strict compliance with the law of the land. Jurisdiction comes by following the law. Disorder and uncertainty follow a departure therefrom. Neither the prosecution or the defendant, by any act of their own, can change or modify the law by which criminal trials are controlled.
If, with the consent of the court and the prosecution, the defendant may have a trial with one juryman less than a constitutional jury, why, with like consent, [169]*169might he not have a tidal with one juryman more than a constitutional jury? If, by his own act, the defendant might take one from a lawful jury, we do not see why he might not add one thereto. In either case there would be a failure of jurisdiction, because jurisdiction attaches and makes valid a verdict when rendered by a jury, and a jury is twelve men.
In civil actions the statute expressly provides that in case a juryman becomes sick and is excused, the trial, with the consent of the parties, may proceed before the remaining eleven jurymen, but even in civil actions this could not be done except by virtue of a statute authorizing it, and hence the statute was enacted. In the absence of a statute consent would not confer jurisdiction. By the consent of the court, prosecution and defendant, a criminal trial ought not to be converted into a mere arbitration.
In the case of Cancemi v. The People, 18 N. Y. 136, the court says: “ Criminal prosecutions involve public wrongs,” a breach of public rights and duties which affect the whole community, considered as a community, in its social and aggregate capacity. 3 Bl. Com.; 2 id. 4, 5. . The end they have in view is the prevention of similar offenses, not atonement or expiation for crime committed. Id. 11. The penalties or punishments for the enforcement of which they are a means to the end are not within the discretion or control of the parties accused; for no one has a right, by his own voluntary act, to surrender his liberty or part with his life. The state, the public, have an interest in the preservation of the liberties and the lives of the citizens, and will not allow them to be taken away “without due process of law” (Const, art. I, sec. 6), when forfeited, as they may be, as a punishment for crime. .Criminal prosecutions proceed on the assumption of such a forfeiture, which, to sustain them, must be ascertained and declared as the law has prescribed. . . . These considerations [170]*170make it apparent that the right of a defendant in a criminal prosecution to affect, by consent, the conduct of the case, should be much more limited than in civil actions. It should not be permitted to extend so far as to work radical changes in great and leading provisions as to .the organization of the tribunals or the mode of proceeding prescribed by the constitution and the laws.
Effect may justly and safely be given to such consent in many particulars, and the law does, in respect to various matters, regard and act upon it as valid. Objections to jurors may be waived; the court may be substituted for triers to dispose of challenges to jurors; secondary in place of primary evidence may be received; admission of facts are allowed; and in similar particulars, as well as in relation to 'mere formal proceedings generally, consent will render valid what without it would be erroneous. . . . But when issue is joined upon an indictment, the trial must be by the tribunals, and in the mode which the constitution and laws provide without any essential change. The public officer prosecuting for the people has no authority to consent to such a change, nor has the defendant. Applying the above reasoning to the present case, the conclusion necessarily follows that the consent of the plaintiff in error to the withdrawal of one juror, and that the remaining eleven might render a verdict, could not lawfully be recognized by the court at the circuit, and was a nullity. If a deficiency of one juror might be waived, there appears to be no good reason why a deficiency of eleven might not be; and it is difficult to say why, upon the same principle, the entire panel might not be dispensed with, and the trial committed to the court alone. It would be a highly dangerous innovation in reference to criminal cases, upon the ancient and invaluable institution of trial by jury, and the constitution and laws establishing and securing that mode of trial, for the court to allow of any number short of a full panel of twelve jurors, and we think it ought not to be tolerated.
[171]*171In the case of The State v. Mansfield, 41 Mo., Wagner, J., says: “A jury must consist of twelve men, no more, no less; no other number is known to the law, and they must appear upon the record to have rendered their verdict.” Rex v. St. Michaels, 2 Blackst. 719; Dixon v. Richards, 2 How. 771; Jackson v. State, 6 Blackf. (Ind.) 461; Brown v. State, id. 561. The petit jury, says Chitty, must consist of precisely twelve, and is never to be more or less, and this fact it is necessary to insert upon the record. If, therefore, the number returned be less than, twelve, any verdict must be ineffectual, and the judgment will be reversed on error. 1 Chit. Crim. Law, 505.
After commenting upon the reasons given in the case of Cancemi v. The People, above cited, Judge Wagner further says: “Another good and sufficient reason, it occurs to us, is, that the prisoner’s consent cannot change the law. His right to be tried by a jury of twelve men is not a mere privilege; it is a positive requirement of the law. He can unquestionably waive many of his legal rights or privileges. He may agree to certain facts and dispense with formal proofs; he may consent to the introduction of evidence not strictly legal, or forbear to interpose challenges to the jurors; but he has no power to consent to the creation of a new tribunal unknown' to the law to try his offense. The law in its wisdom has declared what shall be a legal jury in the trial of criminal cases; that it shall be composed of twelve; and a defendant, when he is upon trial, cannot be permitted to change the law, and substitute another and a different tribunal to pass upon his guilt or innocence. The law as to criminal trials should be based upon fixed standards, and should be clear, definite and absolute. If one juror can be withdrawn, there is no reason why six or eight may not be, and thus the accused, through persuasion or other causes, may have his life put in jeopardy or be deprived of his liberty through a body constituted in a manner unknown to the law. Aside from the illegality of such [172]*172a procedure, public policy condemns it. The prisoner is not in a condition to exercise a free and independent choice without often creating prejudice against him.”
In Hill v. The People, 16 Mich. 357, the court says: “The true theory, we think, is that the people, in their political or sovereign capacity, assume to provide by law the proper tribunals and modes of trial for offenses, without consulting the wishes of the defendant as such; and upon them, therefore, devolves the responsibility not only of enacting such laws, but of carrying them into1 effect, by furnishing the tribunals the panels of jurors1 and other safeguards for his trial, in accordance with the constitution which secures his rights. The government, the officers of the law, bring the jurors into the box; he has no control over the matter who shall be summoned or compose the panel, upon which he may exercise the right of challenge; and the prosecution must see that electors only are placed therein, as the law requires.
“But independent of all theories, and as a practical question, we think there would be great danger in holding it competent for a defendant in a criminal case, by waiver or stipulation, to give authority, which it could not otherwise possess, to a jury of less than twelve men, for his trial and conviction; or to deprive himself in any way of the safeguards which the constitution has provided him, in the unanimous agreement of twelve men qualified to serve as jurors by the general laws of the land.
“Let it once be settled that a defendant may thus waive this constitutional right, and no one can foresee the extent of the evils which might follow; but the whole judicial history of the past must admonish us that very serious evils should be apprehended, and that every step taken in that direction would tend to increase the danger. One act or neglect might be recognized as a waiver in one case, and another in another, until the constitutional safeguards might be substantially frittered [173]*173away. The only safe course is to meet the danger in limine, and prevent the first step in the wrong direction.
“It is the duty of courts to see that the constitutional rights of a defendant in a criminal case shall not be violated, however negligent he may he in raising the objection. It is in such cases, emphatically, that consent should not be allowed to give jurisdiction.” See, also, People v. O’Neil, 48 Cal. 258; Carpenter v. The State, 5 Miss. 163; Jackson et al. v. The State, 6 Blackf. 461; Brown v. State, 16 Ind. 496; Bowler v. State, 5 Sneed (Tenn.), 360; Bell v. State, 44 Ala. 393; Williams v. State, 12 Ohio St. 622; Allen v. State, 54 Ind. 161; 1 Bish. on Crim. Pr. sec. 761; Proff. on Jury Trial, sec. 113; State v. McClew, 11 Nev. 39, 60.
In opposition to these authorities is that of The State v. Kaufman, 51 Iowa, 578, where it is held that, upon a trial for a crime, the defendant may waive his right to trial by a jury of twelve men, and with his consent may he tried before eleven jurors. This decision cites for its support the cases of The Commonwealth v. Dailey et al. 12 Cush. 80; Murphy v. Commonwealth, 1 Met. (Ky.) 365; Tyra v. Same, 2 id. 1, which cases were misdemeanors, and expressly limit their application to misdemeanors only, and, therefore, cannot properly be cited as authority in cases of felony, and especially not in capital cases.
We therefore hold that the court erred in permitting the trial to proceed to a verdict after the withdrawal of one of the twelve jurors. The verdict of eleven jurymen in a capital case is a mere nullity, and any judgment rendered thereon against the defendant is without jurisdiction and void.
This conclusion renders it unnecessary for us to consider any of the other questions presented in the arguments of counsel.
The judgment is reversed and the cause remanded for a new trial.
Judgment reversed.