The opinion of the court was delivered by
Greene, J. :The defendant was informed against for selling intoxicating liquors.' Pie filed a plea of a-former conviction in bar, to which the court sustained. *793a general demurrer. The trial then proceeded, and the defendant, with the consent of the county attorney and the court, waived a trial by a full jury and tried the cause to a jury of eleven persons, who returned a verdict of guilty. Thereupon the defendant filed his motion for a new trial, alleging that he could not be legally tried by a jury of less than twelve persons ; that under the provisions of our constitution it was beyond his power to waive such a jury ; and, therefore, that the verdict was void and should be set aside. This motion was overruled and sentence pronounced, from which defendant appeals.
The first contention is that the court erred in sustaining a demurrer to his plea in bar. A plea in bar of a former conviction or acquittal should contain the complaint, indictment or information upon which it is alleged that such acquittal or conviction was had, and also a complete transcript, or so much of the proceedings as is necessary to show the final disposition of the cause; otherwise, a court is unable to determine the question presented by the plea; it can only be determined from the record. (1 Bish. New Crim. Proc. § 815; Crocker v. The State of Georgia, 47 Ga. 568; Bailey v. The State, 26 id. 579; Smith v. State, 52 Ala. 407.) The record in this court contains none of the proceedings had upon the former trial. We are, therefore, unable to determine the question presented on this ground of error.
The second contention is that, notwithstanding the defendant’s agreement to waive a jury of twelve and his consent to be tried by a jury of eleven, the verdict is void. The provisions of our constitution upon which the defendant relies are section 5 of the bill of rights, which provides that “the right of trial by jury shall be inviolate,’.’ and section 10, which provides that *794■“in all prosecutions the accused shall be allowed a speedy public trial by an impartial jury.”
Authorities-are numerous holding that the jury referred to means a common-law jury of twelve persons. It is not necessary to determine' what the rule would be in this case in a prosecution for a misdemeanor, in the absence of any statutory regulation. Speaking generally, however, a defendant in a prosecution for a misdemeanor was not always, as a matter of right, ■entitled to a jury trial at common law., We are relieved from an investigation of the right of the defendant to a jury trial at common law by the provisions of section 5689 of the General Statutes of 1901, which reads: “The defendant and prosecuting attorney, with the assent of the court, may submit, the trial to the court, except in cases of felonies.” If in such ■case the defendant may waive a trial by jury and submit the trial and decision of his cause to the court, there is no constitutional or statutory provision prohibiting him from consenting to a trial by less than a full jury.
Similar statutory provisions are found in Indiana, Arkansas, Illinois, and Missouri. Their courts have universally held that in cases of misdmeanor the defendant, with the consent of the prosecuting attorney and the court, may waive a trial by a jury and submit the cause to the court. (Murphy v. The State, 97 Ind. 579; State v. Ebert, 40 Mo. 186; State v. Mansfield, 41 id. 470; State of Missouri v. Larger, 45 id. 510; Darst et al. v. The People, 51 Ill. 286, 2 Am. Rep. 301; Warwick v. State, 47 Ark. 568, 2 S. W. 335.)
The judgment of the court below is affirmed.