(dissenting). I concur in the majority opinion except that part which declares the trial invalid because the verdict was by 10 jurors rather than 12. The trial was constitutionally organized and had progressed at great length, in strict conformity with law, when a juror was discharged by order of court, by reason of sickness, and, near the close of a three months’ trial, another juror was discharged by reason of death in the juror’s family. This action was taken by the court, in both instances, upon full consent and agreement in writing of the accused and the proper representative of the government, and upon the further agreement that the trial should proceed with the same force and effect as if the jurors had not been discharged; and the trial was concluded with the remaining 10 jurors under the discretionary approval and order of court.
The doctrine of waiver, as applied to a trial which would be otherwise irregular, is of course not to be narrowly accepted as making an unconstitutional trial valid by contract, but is grounded more upon the idea that the agreement, consent, and conduct of the accused, with respect to a question not affecting the jurisdiction of the court, whereby he induces the court to go forward, and whereby he secures the chance of getting an acquittal, operate as a waiver of the right to raise the objection, in the event of an unfavorable result, that the course adopted was irregular.
The offense charged was statutory, the statute creating it declaring it to be a misdemeanor (section 5209), and the majority opinion seemingly concedes, what is true, that the books do not show any rule or practice in the English courts, prior to our Constitution, that a jury of 12 may not be weakened, in misdemeanor cases, upon waiver by the accused.
Our constitutional provision as-to jury trial means the jury trial as used and practiced in England at the time of the adoption of the Constitution; and, under English history and authority, there is apparently no warrant whatever for the theory that, as jury trial was used and practiced in misdemeanor cases in England, an accused might not waive his right to object to irregularity due to the fact that his jury trial, once properly organized, had subsequently sustained a fractional loss.
While our Constitution does not expressly declare that a panel shall consist of 12 jurors, I do not take issue with the proposition that the *813common-law number of 12 is required at the outset in cases of felony, or with the proposition that, in the higher grades of misdemeanors, trials should begin with that number.
Article 3, § 2, of the Constitution, which declares thht the trial of all crimes, except impeachment, shall be by jury, and the sixth amendment, which provides that the accused shall enjoy the right to a speedy and public trial by an impartial jury, were, in a very large sense, if not altogether, something established for the benefit and protection of accused parties; and there is great force in the position of the government, that a trial by a jury of 12 is a guaranty or a privilege which cannot be withheld from a person accused, but is one which he may waive.
This position is especially strong in a case like this where the constitutional common-law jury was vouchsafed to the accused, and where, in the course of a long trial, sickness and death made it certain that the fruits of the trial must be lost, or its benefits saved to the accused and the government by consent to proceed with a less number than 12.
As recently said by Mr. Justice Holmes, in Interstate Consolidated Street Railway Company v. Commonwealth of Massachusetts, 207 U. S. 79, 28 Sup. Ct. 26, 52 L. Ed. ——, constitutional rights, like others, are matters of degree, and constitutional provisions are not to be pushed to a logical extreme, but must be taken to permit the infliction of some fractional and relatively small losses.
The aim of the constitutional safeguards in question is a full, fair, and public trial, and one which shall reasonably and in all substantial ways safeguard the interests of the state and the life and liberty of accused parties. Whether the idea is expressed in words or not, as is done in some of the bills of rights and constitutions, a free and fair trial only means a trial as free and fair as the lot of humanity will admit.
All will doubtless agree, at least the unquestioned authority is that way, that these protective provisions of the Constitution are not so imperative that an accused shall be tried by jury when he desires to plead guilty; or that his trial, in the event of trial,'shall be held invalid for want of due process of law, based upon the ground that he was not confronted with his witnesses when he had waived that constitutional right and consented to the use of depositions; or because he had not had compulsory process for obtaining witnesses in his favor when he had waived that; or because he had not had the assistance of counsel when he had intelligently refused such constitutional privilege and insisted upon the right to go to trial without counsel; 'or upon the ground that he had not had a speedy trial when he had petitioned the court for delay; or that his trial was not public when he had consented to, or silently acquiesced in, a trial in a courthouse with a capacity of holding only 12 members of the public rather than 1200.
Beyond question, the right of an accused in a case like this to have 12 jurors throughout is so far absolute as a constitutional right that he may have it by claiming it, or even by withholding consent to proceed without that number, and doubtless, under a constitutional government like ours, the interests of the community so far enter into any *814incidental departure from that number, in the course of the trial, as to require the discretionary approval of the court, and that the proper representative of the government should join the accused in consent. ’ .
I quite agree with the majority opinion as to the constitutional and practical importance of the question under discussion.
In the lot of humanity men fall sick and die, and if the constitutional safeguard is so hard and fast that an accused, who has been subjected to a constitutional trial for three months, cannot waive a fractional part of the right which he has enjoyed in order to save his substantial right and get a result, but must be subjected to the burdens of another trial with perhaps the same dilemma, it will become an instrument of oppression rather, than one of protection, and thus the preventive would become something worse than the apprehended danger.
I do not agree that the historical jury of England, in respect to the number of 12, or in respect to waiver, as the right of jury has been administered in English proceedings, is quite as hard and fast as the 'majority opinion"assumes, and I incline to the belief that the English jurist of to-day would be greatly surprised to learn that a jury trial in a misdemeanor case is constitutionally and historically invalid because a juror had been removed from the panel by reason of sickness or death, occurring in the course of the trial, and where the defendant freely and intelligently exercised his right of waiver, and where the Crown and the. accused, under the discretionary approval of the court, waived all objections and formally consented in writing that the trial should proceed, and where such a course was adopted as something in the just administration of the law in respect to the rights of the defendant, and the rights of the government as well.
The case to which Forsyth refers, at page 241, in his History of Trial by Jury (41 Assis. 11), as having decided in the reign of Edward the Third, that a verdict by less than 12 was a .nullity, and upon which reliance is placed by the majority opinion, has not the remotest application here, because in that case the jury failed to agree, and without consent a verdict of 11 was taken notwithstanding the disagreement. Consequently, neither the element of consent nor of waiver was present. That the rule is different with respect to verdicts upon consent is shown by a note to the English text, which explains that “at the present day a verdict by less than twelve is sometimes taken by consent of both parties.”
It is, indeed, strange that so^ little is found in the English text-books and cases upon questions arising in the course of trials for misdemeanors in respect to eliminations from the English jury of 12, originally constituted in strict compliance with the formalities and requirements of law.
It is, perhaps, unnecessary to inquire whether dearth of English reasoning upon such situations is explainable upon the ground that the right of waiver, under circumstances of misdemeanors, is so1 plain and palpable under the maxim, “Quilibet potest renunciare juri pro *815se introducto,” that it has gone without extended discussion. Broom, *099.
The case of The Queen v. Sullivan, 8 A. & E. 831, 1 P. & D. 96, would seem to give support to the theory that in England the right of waiver under circumstances of misdemeanor would be accepted as of course. In that case, which was one of conspiracy, and as such, an offense of a higher grade, a juror, after the trial had been opened, arose and stated that he was on the grand jury that presented the bill. The prosecution offered to consent to his withdrawal; but, the defendants not consenting, and, according to the report of the case in Perry & Davidson, objecting to his withdrawal, the trial proceeded. After verdict the defendants moved for a new trial upon the ground that the case had been mistried. The point was taken that the verdict was only by 11, and that “so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the King of any capital offense unless by the unanimous voice of 24 of his equals and neighbors; that is,.by 12, at least, of the grand jury, in the first place, assenting to the accusation, and afterwards by the whole petit jury, of 12 more, finding him guilty upon his trial,” and that the books did not warrant a limitation of this rule to juries sitting on capital cases. But Eord Denman disposed of the point against the defendants, without discussion, upon the ground of waiver.
In King v. Sutton, 8 B. & C. 417, one juror was an alien, and the point was taken that the decision of the jury was. therefore void. Rule was refused by Eord Tenterden with very little discussion, but with the suggestion, if a new trial were granted under such circumstances at the instance of a defendant, that it would also have to be done at the instance of a prosecutor.
I will pass from the English cases involving crimes less than capital with the thought (1) that a rule that the government would not be held to have waived the constitutional point under such circumstances in cases of misdemeanor, and which would, as a result, subject the accused to a second trial, would be intolerably oppressive to him; and (2) if the fundamental rights of an accused in respect to the original constitution of the jury may be held to be waived by his conduct or silence there is no apparent sufficient reason why an accused may not voluntarily waive rights, in respect to incidents of his trial, by free, independent, and intelligent consent and agreement in writing, under the protecting advice of counsel, through which the substance of his intended constitutional trial is saved to him.
Now, as to analogous situations of great weight upon the question under discussion, because they involve waiver of English fundamental rights of a higher grade than those involved in misdemeanors:
The great privilege secured to English subjects by the common law, that no person shall twice be put in jeopardy of life and limb for the same offense, while not always treated in the books as fundamental because it relates to practice and to the just course of criminal procedure rather than to an original right, is far more essential and of vastly greater importance as a practical safeguard to life and liber*816ty than the right which gives the accused 12 jurors, rather than 11, throughout the trial, if he wants them.
Under our Constitution the fundamental right of the accused is to have the jury of 12. That having been furnished to him, whether it shall remain intact throughout the trial is something in the nature of an incident of the right, and if some fractional or relatively small loss is unavoidably sustained in the course of the trial it is a loss which is as much the loss of the accused as the loss of the government, such is “the lot of humanity.” The question of waiving the fractional or incidental loss under such circumstances, therefore, stands upon a different footing than would a question as to the right of an accused to waive the fundamental or original right altogether.
In Kinloch’s Cáse, Fost. C. L. 16-36, after the trial'had opened the jury was discharged at the request of the defendant in order that he might raise certain questions upon demurrer, and, after the demurrer was disposed of, the question was whether putting him upon a second trial would be against the rule in respect to twice in jeopardy. The question, as stated at page 31, was whether, in a capital case, the court may not discharge the jury upon motion of the prisoner’s counsel and at his own request and with the consent of the Attorney General before evidence given, in order to let the prisoner into a defense which, in the opinion of the court, he could not otherwise have been let into.
Kinloch’s Case was carefully considered upon the theory (page 38) that discharging the jury was not a strain in favor of prerogative; that it was not done to the prejudice of the prisoners, but, on the contrary, was intended as a favor to them. Enlarging upon this theory it was said:
“In that light, I say, it was considered by the court; in that light it was considered by the prisoners and their counsel, and accordingly they prayed it; and in that light Mr. Attorney General, with his usual candor, assented to it; and in that light I know of no objection in point of law or reason to it; and therefore I am of opinion that judgment ought not to be arrested.”
Thus the course which the first trial took was held not to operate as a discharge of the prisoners from a future trial for the same offense.
While the decision was not expressly based upon waiver, it was in fact based upon the principles of waiver, because, as reasoned, the • prisoner, being relieved from the first trial upon his own consent and request and for a supposed benefit, should not be permitted to interpose the first jeopardy as a bar to a future trial.
Under an ancient and fundamental rule of law an accessory 'could not be legally indicted and convicted as accessory until the principal •had been convicted, yet according to Lord Coke, applying the maxim, “Quilibet potest renunciare juri pro se introducto,” he might waive that right and go to trial before the principal was attainted. 2 Inst, c. 14, p.-183.
It would seem, according to Sir John Kelyng’s report of the Lord Dacre Case, that it was more a question there whether Lord Dacre could, in his own right, select a tribunal other than that of his peers than a question of waiver; at least, the effect of the reasoning of Rex v. Knowles, 12 St. Tr. 1167, 1196, is that it is not the right of a *817peer to select his tribunal, because of the King’s right and interest in the dignity and official titles of nobility.
The rule that a peer cannot in his own right renounce his privilege of being tried by his peers, and thereby select another kind of a tribunal, is doubtless based upon political and state considerations, and upon the idea that his title is not personal but an honor of inheritance, and that conviction of treason, which was the charge in Lord Dacre’s Case, would work corruption of blood and a forfeiture of title. It is true enough that, if a peer were put upon trial for treason before a jury, he might in his own right arbitrarily insist upon a trial before his-peers. The converse, however, is not true. Where a peer is put upon the Magna Charta trial before peers, he can no more in his own right waive that trial and take a jury trial than could a judge or a president under impeachment waive the constitutional trial before our Senate, and elect a trial by jury. Such a question of waiver was the one considered in the Dacre Case, and it sustains no analogy whatever to the kind of waiver before us.
It is manifest that the principle involved in Lord Dacre’s Case in no way touches the question here, because, under the law of England, as will be seen, if the peer consents to have, and is given, a different kind of a trial than the one before his peers, he has by his conduct waived the right to object that the trial he has had is not the one he was entitled to under fundamental law. It thus follows that a peer who has voluntarily elected to take the chances of a trial by a jury of commoners will not thereafter be permitted to have a second trial by his peers, upon the ground that he could not waive, and has not had, the trial contemplated and vouchsafed by Magna Charta.
“It is as much the law of the land, that a peer be tried by his peers as a commoner by commoners. Yet if one who has a title to peerage, be indicted and arraigned as a commoner, and plead not guilty, and put himself upon his country, it hath been adjudged, that he cannot afterward suggest that he is a peer, and pray a trial by his peers.” 4 Hawk. P. C. c. 44, § 19. Thus, under the doctrine of waiver, a peer loses his Magna Charta right of trial by his peers, which, is at least' as fundamental as the right of an accused in a misdemeanor case to have the exact number of 12 throughout his trial.
In respect to safeguards, distinction wás made at an early time in England between the graver cases and cases of misdemeanors, and while the plea of guilty was discouraged in capital cases, it was received without hesitancy in other cases of felony and in misdemeanors, and while the trial of noblemen was by their peers in treason and felony, in misdemeanors, even of the higher grades, as libels, riots, perjury, and conspiracy, they were triable by a jury like a commoner. 1 Christian’s Blackst. (12th Ed.) 401, note 7; 4 Christian’s Blackst. (12th Ed.) 349, note 2; 3 Inst. 30; 4 Sharswood’s Blackst. 259, and notes.
Under our law there is no express constitutional mandate that the jury shall consist of 12, though, without doubt, the right of the common-law number, as the right was administered in England, was in*818tended; there is no constitutional mandate that waiver shall not be made in proper cases, and, while considerations of public policy are against .waiver in capital cases, such considerations are by no means absolute and controlling in respect to prosecutions for misdemeanors.
Without discussing the question whether there is any precise line of distinction upon exact legal principles between the higher and the lower grades of crimes in respect to waiver, there are unquestioned and cogent reasons of public policy requiring the rule of strict construction which renders waiver inadmissible in capital cases that do not exist in any broad and substantial sense in prosecutions for the lower grades of offenses, although the same considerations pf public policy doubtless, in a measure, but in a less conclusive sense, enter into the original constitution of the jury in other felonies and the higher grades of misdemeanors. When, in prosecutions for the lower crimes, a loss, not expressfy covered by constitutional mandate, comes to a constitutional jury trial in progress, the question whether waiver is admissible, in a given situation, is apparently not to be determined upon an abstract legal line drawn between felonies and misdemeanors, or between different kinds of felonies, .or different kinds of misdemeanors, but upon sound discretion exercised with reference to the character and extent of the. loss — whether the loss is so slight and fractional, and so far incidental, that its waiver would not offend public policy, or so vital and comprehensive as to dethrone the substance of the constitutional plan, thus presenting a situation which invokes the interposition of considerations of public policy against its waiver.
Whenever the progress of a constitutional jury trial is interrupted by a fractional and accidental loss from the panel, the practical question presented to the trial court always is whether the accused shall be allowed to waive the loss , and enjoy the substance of his constitutional right and have the jury trial he wants, or whether public considerations are so strongly against it that waiver shall be denied to the end that he shall not enjoy the substance of his constitutional right and have the jury trial he wants.
There is no decision of the Supreme Court upon the precise point under consideration, and, while state decisions are numerous and involve diversity and conflict upon questions somewhat akin, though quite collateral in principle, there is very little discussion to be found in American text-books, or by state courts, upon the particular qiiestion with which we are dealing. The discussion along these lines is largely* confined to questions of waiver in the course of trials in capital and other felony cases; to the right of waiver of the whole jury in cases involving misdemeanors; and to questions of right and of public policy as viewed in respect to questions raised against the jury tribunal as originally constituted; as, for instance, starting with a jury of less than 12, with jurors illegally drawn, with jurors absolutely disqualified, with jurors not sworn, and the like.
Commonwealth v. Dailey, 12 Cush. (Mass.) 80, is an authority in point in that one of the jurors was withdrawn, during the progress of the trial, from a panel properly constituted at the outset. This authority has not been followed in some jurisdictions where it was *819sought to apply it in cases where the precise point which it covers was not involved. It will be found where it has been questioned by the courts in other jurisdictions and by text-writers that the doubt was evidently based upon the mistaken theory or supposition of a scope broader than the precise point decided, and as involving something beyond what was intended by the justly renowned jurist who pronounced the decision.
The doctrine of Commonwealth v. Dailey is not easily overturned or shaken. The decision was rendered in 1853, by a judge who, by common consent, stood next to Marshall as an American jurist, upon full consideration and careful reasoning, and upon self-imposed limitations, founded upon considerations of public policy, which renders it applicable only to cases of misdemeanors in which the jury, as originally constituted, consisted of 12 men, and for more than 50 years it has been generally accepted and followed, throughout the country, in the practical administration of criminal justice, in respect to incidents of misdemeanor trials in actual progress.
It is unmistakable that Chief Justice Shaw had in mind the very important distinction between cases starting with less than 12, and cases where there is a loss from that number upon trial. In the one instance there is some reason for treating the number as a fundamental essential, and there is no necessity for starting with less tlian 12, because the state has ample and ready means at hand for constituting a jury of that number, and nothing substantial is lost to the accused or the state by the slight necessary delay in doing it; while, in the other instance, the jurisdictional essential having been supplied, all the time, expense, and advantages, which attach to a properly constituted trial in progress, both as regards the rights of the accused and the interests of the state, are altogether lost, unless the accused, party’s constitutional right of jury is subject to waiver as to some possible fractional losses incident to contingencies and necessities resulting from sickness and death.
Moreover, the principle of Commonwealth v. Dailey was expressly recognized by the Supreme Court in Schick v. United States, 195 U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 99, where, after saying, “When, there is no constitutional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy,” and that “authorities in the state courts are in harmony with this thought,” the opinion quotes approvingly the expression of Chief Justice Shaw, that “he may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court,” and cites various state authorities sustaining the-principle involved.
It would seem that Schick v. United States goes further in recognition of the right of waiver than Commonwealth v. Dailey, because it sustains the right of waiver of the entire panel in cases of misdemeanor.
It may, perhaps, be urged that the case at bar involves a graver misdemeanor than that in Schick v. United States; but does this furnish a sufficient reason for a distinction?
*820There is no constitutional or statutory mandate which draws a line in this respect between misdemeanors. Are there any considerations of public policy which interpose in one class of misdemeanors while not in another, and, if so, where is the line of cleavage to be drawn ?
It is not important to inquire whether with us there is any offense answering strictly to the English felony, or whether there is any logical and general line of distinction between felonies and the higher misdemeanors, because not only was the offense, in the case at bar, created by statute, and declared to be a misdemeanor by the statute which created it, but it is, in its character, peculiarly one of misdemeanor, as it relates to demeanor and misconduct “in the business of one’s office.”
It may also be urged that the penalty prescribed for the offense charged in the case at bar — that of imprisonment — raises considerations of public policy not present in Schick v. United States. But is this a sufficient answer? Inability or failure to pay the fine prescribed in the oleomargarine case would result in imprisonment, and therefore the consequences of the danger supposed to lurk in a rule which would permit an accused to waive away his liberty are present in such a situation as much as in the other.
It is probable that the history and debates of the constitutional convention will not be found to sustain the idea that the constitutional safeguards in question were in any sense established as something necessary to protect the state or the community from the supposed danger that accused parties would waive away the interest which the government has in their liberties, and go to jail.
There is not now, and never was, any practical danger of that. Such a theory, at least in its application to modern American conditions, is based more' upon useless fiction than upon reason. And when the idea' of giving countenance to the right of waiver, as something necessary to a reasonable protection of the rights and liberties of accused, and as something intended to be practical and useful in the administration of the rights of the parties, has been characterized as involving innovation “highly dangerous,” it would, as said by Judge Seevers in State v. Kaufman, 51 Iowa, 578, 581, 2 N. W. 275, 277, 33 Am. Rep. 148, “have been much more convincing and satisfactory if we had been informed why it would be highly dangerous.”
So far as practical consequences to the liberties of accused parties are concerned, a hard and fast rule of law which denies the right of an accused to waive the loss of a juror, stricken from thb panel by sickness or death, during the progress of the trial, would be far more dangerous and intolerable than would a rule which accords to an accused, upon written application, joined by the government, and under the approval of the court, the right to waive the fractional loss whereby he may establish his right to liberty and save to himself the expense, the delay and the oppressive imprisonment incident to another trial.
Traced to its English origin, it would probably be found, so far as the right of waiver was there withheld from accused parties, that *821in a very large sense tlie reason for it was that conviction of crime, under the old English system, operated to outlaw and to attaint the blood and to work a forfeiture of official titles of inheritance, thus affecting the rights of third parties.
In every substantial sense our constitutional provisions in respect to jury trials in criminal cases are for the protection of the interests of the accused, and as such they may, in a limited and guarded measure, be waived by the party sought to be benefited.
The constitutional provision as to a jury is not so absolute as a government regulation, nor is the idea of a jury of 12 so apostolic as not to safely permit of a little relaxation, in a proper case, at the request, or upon the prayer, of the party most interested, to the end that he may have a speedy and practical administration of justice in accordance with the spirit and substance of the constitutional plan.
An order of court permitting a trial in progress to be concluded upon request and consent of an accused is always intended as something for his benefit and reasonable protection; and, while the right of 12 jurors to the end of the trial would never be denied an accused if he claimed it, and, while a cause would never proceed without the number of 12, except upon consent of the accused, withholding from him the right of waiver, under the idea of supposed danger to his liberty, when he wants to exercise the right in order to save the trial and get his liberty, would be somethii^g more in the nature of an act of oppression than of an act for his reasonable protection and security. And, when discretionary action is taken by the court, upon the request of an accused under advice of counsel, approved by the proper representative of the government, which preserves the substance of the constitutional tribunal, and which permits his trial to go on for his benefit and to the end that he may take the chance of securing an acquittal, he should not be permitted to set up the invalidity or irregularity of such a course; and this is so upon reasonable grounds of general good faith as well as upon principles of waiver and estoppel. That, doubtless, is the English view in respect to the application of such principles to analogous situations, involving weightier consequences in cases of felonies; and there is no sufficient reason why it should not hold good here in misdemeanor cases.
The case of Edwards v. State, 45 N. J. Law, 419, deals with constitutional provisions with respect to jury trials, and, upon careful consideration, accepts them as safeguarding rights and privileges established for the benefit of accused parties and as something which cannot be withheld but which may be waived; and the Supreme Court of New Hampshire, in the concluding paragraphs of the Opinion of the Justices, 41 N. H. 550, 552, without discussion or question, deals with the constitutional guaranty as involving a right which may be waived. See, also, State v. Almy, 67 N. H. 274, 280, 28 Atl. 372, 22 L. R. A. 744.
Upon the exact point decided in Commonwealth v. Dailey there is apparently no conflict of authority; and it is quite sufficient for present purposes to say that, so far as known, there is no case, not of *822felony, in any jurisdiction, involving the precise question of the case at bar, which holds that an accused may not waive the loss of a single juror in the progress of his trial, from a panel originally constituted according to the forms of law, and the case of State v. Kaufman, 51 Iowa, 578, 2 N. W. 275, 33 Am. Rep. 148, extends the doctrine because that was a case of forgery, and though 1 juror was discharged and the trial resumed with 11, upon consent, the situation was accepted as' not raising questions relating to the jurisdiction of the court,'and it was held that the loss of a juror was something which might be waived by the accused. See, also, State v. Grossheim, 79 Iowa, 75, 44 N. W. 541.
To the same effect in misdemeanor cases are State v. Mansfield, 41 Mo. 470; State v. Sackett, 39 Minn. 69, 72, 38 N. W. 773; United States v. Shaw (D. C.) 59 Fed. 110, 114.
If the disqualification of a juror appears in the course of a murder trial, and the accused fails to object, he waives his objection, and a trial by 11 qualified jurors and 1 disqualified juror does not deprive him of a constitutional right which he may not waive. Queenan v. Oklahoma, 190 U. S. 548, 551, 23 Sup. Ct. 762, 47 L. Ed. 1175.
I do not look upon Queenan v. Oklahoma as meaning what the majority opinion claims for it. The question of waiver was in no sense rested upon the idea of 12 jurors, but upon the failure of the accused to press an objection which would have been fatal to the trial. It is unmistakable that the Oklahoma case recognized the idea of a proper application of the doctrine of waiver to matters of substance, as well as of form, in trials for the higher crimes. That- case and-the one at bar, under extreme logic, are not technically the same, in respect to the nature of the loss to the right of the accused; but it seems clear that the principle which renders the doctrine of waiver admissible in a case where the accused remains silent, and his trial for murder is concluded after he knows that one of his constitutional 12 is totally disqualified, would safely enough render it admissible in a trial for misdemeanor constitutionally begun, and concluded upon the express request of the accused after he knew that a juror had been discharged with his assent during the course of his trial. But, without regard to whether the two cases are precisely alike in principle, the plain meaning of the Oklahoma case is that the accused lost a substantial right through waiver. This is so because the tribunal was made up of 11 qualified jurors, and 1 disqualified juror who could not have been counted as a part of the constitutional 12 in the absence of the silent consent of the accused, and because the loss to his constitutional privilege- of having 12 qualified jurors was so vital that the mere exercise of his right to object would have been fatal to the trial, yet by remaining silent he waived the right to object, and consequently the fractional loss which he had sustained. In short, he waived his right to have a full jury of 12 qualified men.
The authorities are numerous which go far beyond Commonwealth v. Dailey, and hold that an accused may waive a jury trial altogether in misdemeanor cases. Schick v. United States, 195 U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 99; Darst v. People, 51 Ill. 286, 2 Am. Rep. 301; *823Logan v. State, 86 Ga. 266, 12 S. E. 406; State v. Woodling, 53 Minn. 142, 54 N. W. 1068; Ward v. People, 30 Mich. 116; Commonwealth v. Sweet (Quart. Sess.) 16 Pa. Co. Ct. R. 198; Id., 4 Pa. Dist. R. 136; State v. Alderton, 50 W. Va. 101, 40 S. E. 350; Morris Levi v. State, 4 Baxt. (Tenn.) 289, 292.
There are other cases holding that he rnay waive and go to trial with less than 12 in misdemeanor cases. State v. Van Matre, 49 Mo. 268; Murphy v. Commonwealth, 1 Metc. (Ky.) 365; Tyra v. Commonwealth, 2 Metc. (Ky.) 1; State v. Borowsky, 11 Nev. 119; State v. Cox, 8 Ark. 436; State v. Mansfield, 41 Mo. 470, 479.
Upon the extreme proposition that an accused, in cases involving certain grades of felony, may waive his constitutional right and go to trial with less than 12, as well as upon the less extreme proposition that he may waive the loss of a juror from a properly constituted tribunal, during the course of a felony trial, there is conflict, involving a field of discussion which we need not enter, because it is foreign to the question under consideration.
It is quite clear, from a careful reading of Commonwealth v. Dailey, supra, that- Chief Justice Shaw had in mind a distinction between a case started with a deficient number of jurors upon consent and a case where a juror was withdrawn upon consent during the course of a trial.
It is likewise clearly manifest that Judge Cooley, Const. Eim. (7th Ed.) 458, 45.9, in presenting a view in the nature of a query and in speaking of the infirmity of a trial by a jury of less than 12 by consent as involving a trial in the nature of an arbitration, was directing his thought to the tribunal as organized at its inception, and even this view has the very significant qualification, “at least in case of felony.”
So in Hill v. People, 16 Mich. 351, which was a case of murder, the question related to the original organization of the jury and to a defect which the accused did not know.
The question in Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061, related not only to the proper organization of the trial at the outset, but to a substantial departure from the constitutional plan, in that the trial started with a jury of eight; and the case, moreover, involved a statute which was ex post facto in its application to the offense charged.
Likewise Chitty’s Criminal Law, 505, refers to a petit jury when sworn rather than to an incidental loss in the progress of a trial.
The same is true of the irregularity in Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262, which raised the question whether the jury was originally organized according to the requirements of the Constitution; and the case in no way involved a consideration of express waiver as applied to an incident of a trial, or of any question as to the binding effect of waiver in respect to a fractional loss from a constitutionally organized tribunal during the course of a trial.
Not speaking now of questions of good or bad faith to courts charged with the administration of justice, or of general public considerations, a construction of the constitutional provision — establishing the *824right of trial by jury as something for the general benefit of society, but for the special benefit of those accused of crime — which would compel, or permit, the government to stop and send an accused to another trial, and perhaps to repeated trials, in a misdemeanor case, through a denial of the right, when he wants to exercise it, to waive a fractional loss from a constitutional trial once entered upon, would often render the provision an instrument of oppression and, as a result, in many instances, “trial by jury itself, instead of being a security to persons who are accused, will be a delusion, a mockery, and a snare.”