
    DUNN v. STATE.
    (No. 5869.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1920.)
    Jury <®=>29(5) — Excuse of single juror in criminal case with defendant’s consent fatal error.
    In a prosecution for murder, where, after jury had been impaneled, and trial had proceeded for some time, one of the jurors was excused with the consent of defendant, and the ease thereafter went to its final conclusion with only 11 jurors, such action was fatal error, and necessitates reversal of the conviction; defendant cannot waive the constitutional requirement that a jury consist of 12 men.
    Appeal from District Court, Coryell County ; J. H. Arnold, Judge.
    Tom Dunn was convicted of murder, and he appeals.
    Reversed, and cause remanded.
    See, also, 85 Tex. Cr. R. 299, 212 S. W. 511.
    A. R. Eidson, of Hamilton, and McClellan & McClellan, of Gatesville, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder and given 25 years in the penitentiary.

A bill of exceptions discloses that after the jury had been impaneled and the trial had proceeded for some time one of the jurors was excused with the consent of the defendant, and the case thereafter went to its final conclusion with only 11 jurors. As thus constituted a verdict was rendered, and all the’ proceedings had up to the rendition of the verdict, including the verdict itself, before the 11 jurors. This constitutes fatal error and necessitates a reversal. The question has been often before the court, and a number of opinions have been written, all to the same effect, that a jury thus trying a case is not a legal or constitutional jury, and therefore incapable of trying a party, and it is immaterial that the defendant waives his right to be fried by 12 jurors and consented to be tried by 11. Without discussing the matter we refer to cases in point which review the identical question, all holding that such verdict cannot" stand. Jones v. State, 52 Tex. Cr. R. 303, 106 S. W. 345, 124 Am. St. Rep. 1097; Stell v. State, 14 Tex. App. 59; Lott v. State, 18 Tex. App. 627; Jester v. State, 26 Tex. Cr. R. 369, 9 S. W. 616; McCampbell v. State, 37 Tex. Cr. R. 607, 40 S. W. 496; Ex parte Reynolds, 35 Tex. Cr. R. 437, 34 S. W. 120, 60 Am. St. Rep. 54; Ex parte Ogle, 61 S. W. 122. These cases have discussed the matter on both statutory and constitutional grounds. The clauses of the law, both constitutional and statutory, are mentioned, and the reasons are quoted and discussed. All of the decisions reach the conclusion that a jury must consist of 12 jurors, and that defendant cannot waive his right to be tried by a jury of 12 men. In fact, the statute provides that defendant may waive any right except a trial by jury. A jury, by the terms of the Constitution, consists of 12 men. The defendant cannot waive this.

There are some other questions suggested, but these matters may not arise as set forth in the record upon another trial, and are not discussed.

The judgment is reversed, and the cause remanded. 
      —iPnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes
     