No appeal lies in a criminal action until after the rendition of final judgment in the cause. S. v. Twiggs, 90 N.C. 685. If the case were properly before us, as on an application for a certiorari, we should find no ground for granting the writ, for it has long been settled that, in a trial for a capital felony, for sufficient cause the judge may discharge the jury and hold the prisoner for another trial. In which case it is his duty to find the facts and set them out in the record, so that his conclusion as to the matter of law arising from the facts may be reviewed by this court. S. v. Jefferson, 74 N.C. 309. All this his Honor did, and it will serve no good purpose for us to do more than to say that, upon the facts found, it was the duty of his Honor to direct a mistrial and hold the prisoner. The jury provided by law for the trial of indictments is composed of twelve men; a less number is not a jury, and a trial by jury in a criminal action cannot be waived (807) by the accused. S. v. Stewart, 89 N.C. 563. While it might have been permissible to call another juror in place of the one who was sick, and begin the trial anew, it was a matter in the control of the *Page 562 presiding judge, who we doubt not for good reasons pursued the regular course.
Appeal dismissed.
Cited: Hall v. Hall, 131 N.C. 187; S. v. Tyson, 138 N.C. 629; S. v.Dry, 152 N.C. 814; S. v. Rogers, 162 N.C. 659, 665; S. v. Ford,168 N.C. 167.