¶1after stating the case: It is elementary that a jury, as understood at common law and as used in our constitutions, Federal and State, signifies twelve men duly impaneled in the case to be tried. A less number is not a jury. Traction Co. v. Hof, 174 U. S., 91.
¶2In Lamb v. Lamb, 4 Ohio St., 167, Chief Justice Thurman said: “That the term 'jury’ without addition or prefix imports a body of twelve men in a court of justice, is as well settled as any legal proposition can be.” Opinion of the Justices, 41 N. H., 550; United States v. 1363 Bags of Merchandise, 2 Sprague, 85; United States v. R. R., 123 U. S., 113.
¶3In S. v. Scruggs, 115 N. C., 805, it is held that, “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 a jury in a criminal action cannot be waived by the accused.”
¶4In S. v. Stewart, an indictment for assault and battery, Justice Ashe says: “It is a fundamental principle of the common law, declared in Magna Carta, and again in our Bill of Bights, that no person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court. Art. I, see. 13. The only exception to this is where the Legislature may provide other means of trial for petty misdemeanors, with the right of appeal.
¶5*660“Tbe court bere bas undertaken to serve in tbe double capacity of judge and jury, and try tbe defendant without a jury, wbicb it bad no authority to do, even with the consent of tbe prisoner.” Citing 1 Bish. Crim. Law, 759.
¶6In S. v. Holt, 90 N. C., 750, an indictment for cruelty to animals, it is held that a jury trial cannot be waived by tbe defendant in a criminal action.
¶7Tbe defendant may plead guilty, or nolo contendere, or autre-fois-convict, and of course tbe impaneling of a jury is unnecessary; but when be pleads not guilty in cases, such as this, where a trial-by jury is guaranteed by tbe organic law, be must be tried by a jury of twelve men, and be cannot waive it. S. v. Moss, 47 N. C., 66; Cancemi v. People, 18 N. Y., 128.
¶8It would have been much safer-for bis Honor to have followed tbe settled precedents of this Court, and have discharged the jury and impaneled another.
¶9Innovations in settled methods of procedure are generally unwise, especially in criminal cases. In this connection it is well to remember tbe words of Chief Justice Merrimon, “A great danger arises from jjractiees and j^ecedents that insidiously gain foothold and power in courts of justice by inadvertence and lack of due consideration. ... In tbe economy of time, the'burry of business, lack of attention, hasty consideration, irregular methods of trial are adopted, allowed, and tolerated, and thus vicious practices spring up, creating sources of danger to constitutional right.” S. v. Holt, supra.
¶10New trial.