I concur in the judgment. The affidavits as to the condition of the juror Wade, on the afternoon when the case was submitted to the jury for decision, were conflicting, and the judge who presided at the trial, and must have personally observed the juror at the time referred to, was in a far better position than we to determine the truth of the matter; and that he did not believe the juror to have been under the *608influence of liquor, as charged, is implied from the order denying appellant’s motion for a new trial.
I do not, however, give my assent to that part of the foregoing opinion which seems to intimate that if the juror was in the condition claimed by defendant, the objection now urged was waived because not made before the retirement of the jury. 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. The people of the state, equally with the defendant, are interested in having this constitutional right secured in every case, and it is of infinitely more importance to the people than to the defendant that no conviction for a grave offense shall be had, except as the result of a trial which commands the respect of those who witness it, or are informed of the manner in which it is conducted.
No juror is, in judgment of law, competent to sit during the trial who is not in a condition to intelligently receive the evidence, the argument of counsel, and the charge of the court; and while it may be true that intoxication does not affect all men alike,—some retaining their judgment and ability to weigh and deliberate upon the effect of evidence, and to understand an argument, or the instructions of the court,—still, the law takes no account of these exceptions, and holds no person competent to sit as a juror while in a state of intoxication. And I am of the opinion that if a juror is in court intoxicated to such a degree as to be plainly noticeable, *609the defendant is not required to bring himself into antagonism with such juror by entering any formal protest or objection to proceeding with the trial while the juror is in such condition. This would present a case affecting not only a substantial right of the defendant, but also the dignity and decorum of the court itself, and should be disposed of by the court of its own motion, and that, too, so as to preserve the rights of the defendant.