In the case of People v. O'Neil, 48 Cal. 257, the report of the case does not state the constitutional provisions, but the statement of fact shows that the defendant consented to be tried by a jury of eleven men and afterward appealed from the adverse verdict. In disposing of the matter the court merely states that the authorities cited by the defendant established the proposition that a jury in a criminal action must within the meaning of the constitution consist of twelve men.
His constitutional right to a public trial could not be waived by defendant. (Kalloch v. Superior Court , 56 Cal. 229; People v. O'Neil , 48 Cal. 257; Cancemi v. People , 18 N.Y. 128; People v. Deegan , 88 Cal. 608.) The court erred in receiving the testimony of Frank Hobart regarding statements made by the defendant, because such statements were in the nature of a confession and received when no offense was shown to have been committed.
A defendant in a criminal case cannot waive his right to be tried at every stage of the cause, before a court and full panel of twelve jurors. (People v. O'Neil , 48 Cal. 257; Cancemi v. People , 18 N.Y. 128, 138; Territory v. Ah Wah, 4 Mont. 149, 173; 47 Am. Rep. 341; Hill v. People, supra;Hunt v. State , 61 Miss. 577; Wilson v. State , 16 Ark. 601; Brown v. State , 16 Ind. 496; Bell v. State , 44 Ala. 393; State v. Mansfield , 41 Mo. 470; Williams v. State, 12 Ohio St. 622; Allen v. State , 54 Ind. 461; Neales v. State , 10 Mo. 498; Proffatt on Jury Trials, sec. 113; 1 Trunk Trials, sec. 6.) Nor waive his right to be present upon the trial and every stage of it, nor, what is the same thing, that he be confronted with the witnesses against him. (Maurer v. People , 43 N.Y. 1; Burley v. State, 1 Neb. 391; State v. Myrick, 38 Kan. 238; Hoyt v. Utah , 110 U.S. 574; Prine v. Commonwealth , 18 Pa. St. 103; Smith v. People, 8 Col. 457; Jones v. State, 26 Ohio St. 208; Wade v. State, supra;Jackson v. Commonwealth, 19 Gratt. 656; Gree
Whatever may be the rule in civil cases, in which it may be said, in a general sense, only the parties thereto are interested in the verdict, the principle of waiver of the right to object to misconduct which disqualifies a juror for the performance of his duties as such, has no application to a criminal trial for a felony. In such a case the constitution guarantees to a defendant the right to a trial by twelve competent jurors, and his express consent to be tried by a less number will not bind him. (People v. O'Neil , 48 Cal. 257.) And there must be this number of competent jurors throughout the trial.
It appears affirmatively by the record that the defendant was tried by at least one, if not two, jurors who were never summoned as jurors in the case. (Code Civ. Proc., secs. 227, 246, 247, 600; Pen. Code, sec. 1041, 1042, 1046; People v. Scoggins , 37 Cal. 676; People v. Russell , 46 Cal. 121; People v. O'Neil , 48 Cal. 257; Const. Cal., art. 1 sec. 7; Cancemi v. People , 18 N.Y. 129.) It appears by the record that at the time the judgment was pronounced the defendant was not informed by the court of the nature of the charge against him, or of his plea, or of the verdict of the jury, all of which should have been done before any legal judgment could be pronounced.
Since the Constitution formerly authorized the waiver of a jury trial only in misdemeanor cases, it must be assumed the amendment was adopted for the express purpose of extending that right to felony charges. The case of People v. O'Neil, 48 Cal. 257, upon which the appellant relies, is not determinative of this case, for the reason that the Constitution as it then existed did not permit a defendant to waive trial by a jury in a felony charge. It follows that since he could not then waive a trial by jury, he would not be permitted to consent to a verdict which was rendered by a part of a jury only.
And from the same premises we further conclude that this was an error so far destructive to the invaded right, that the error could not by mere consent be rendered harmless. In People v. O'Neil, 48 Cal. 257, the defendant consented to a trial by a jury of eleven men. In deciding the appeal the Supreme Court said: "The Attorney-General confesses the error; and it may be added that the authorities cited by the defendant establish the proposition that a jury in a criminal action must, within the meaning of the Constitution, consist of twelve men."