The constitutional right of a jury trial in criminal cases cannot be waived by one in dicted for a felony so as to make valid a trial by eleven jurors ; Territory v. Ortiz, 8 N. Mex. 154, 42 Pac. 87. This doctrine has been based upon various grounds. It was said in one case that the duty of the state to its citizens would prohibit a waiver of a full panel ; Cancemi v. People, 18 N. Y. 128. Shaw, C. J., suggested that in some cases the defendant's chance of acquittal might be greater with eleven jurors than with twelve ; and Cooley suggests the view that a jury of less than twelve is a tribunal unknown to the law, and would amount to a mere arbi tration, which is not allowable; Const. Lim., 6th Ed. 391. Some,courts held that there may be a valid waiver as to misdemeanors ; State v. Worden, 46 Conn. 349, 33 Am. Rep. 27; State v. Albee, 61 N. H. 423, 60 Am. Rep. 325 ; State v. Alderton, 50 W. Va. 101, 40 S. E. 350 ; and others that the right was not secured with respect to minor or trivial offences; People v. Justices of Court, 74 N. Y. 406 ; By ers v. Cora., 42 Pa. 89 ; or at least that a jury may be dispensed with in the first in stance where there is a right of appeal with a jury ; Jones v. Robbins, . 8 Gray (Mass.) 329; City of Emporia v. Volmer, 12 Kan. 622. -Statutes conferring the right to waive are not in conflict with the constitution of the United States ; Hollinger v. Davis, 146 U. S. 314, 13 Sup. Ct. 105, 36 L. Ed. 986 ; or of the state ; People v. Noll, 20 Cal. 164. It held that in civil cases in Utah a jury of twelve was not required ; Wolf Co. v. Brew ing Co., 10 Utah 179, 37 Pac. 262 ; Mackey v. Enzensperger, 11 Utah 154, 39 Pac. 541; but gee American Pub. v. Fisher, 166 U. S. 464, 17 Sup. Ct. 618, 41 L. Ed. 1079, where it was held that litigants in common law ac tions in the courts of Utah while a territory had a right to trial by jury which involved unanimity of verdict, and this right could not be taken away by territorial. legislation. As to unanimity of a verdict in a state court see infra.
There would seem to be no legal objection to permitting this change by constitutional provision, but even that, it has been held, will not sustain a statute providing that in certain contingencies, at the discretion of the trial court, a jury may consist of less than twelve men ; McRae v. R. Co., 93 Mich. 399, 53 N. W. 561, 17 B. R. A. 750. In California, in civil cases and misdemeanors, the jury may consist of twelve or any number less than twelve upon which the parties may agree in open court. And the number of jurors may be limited in many states, includ in Colorado, Florida, Idaho, Iowa, Louisi ana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Dakota, Washington, and Wyoming. See 36 Cent. L. J. 437.
A statute changing the jury to nine in civil cases applies to • pending cases ; Roen feldt v. Ry. Co., 180 Mo. 554, 79 S. W. 706, where the court said that "nonne has a vest ed right to have his cause tried by any par ticular mode of procedure." Statutes providing for compulsory refer ence have been held constitutional in many cases as not infringing the right to trial by jury; Copp v. Henniker, 55 N. H. 179, 20 Am.
Rep. 194 ; Edwardson v. Garnhart, 56 Mo. 81; Norton v. Rooker, 1 Pinney (Wis.) 195.
And the provision requiring the payment of costs before appeal was also held constitu tional ; McDonald v. Schell, 6 S. & R. (Pa.) 240 ; Emerick v. Harris, 1 Binney (Pa.) 416. The seventh amendment of the United States Constitution does . not apply to the state courts ; Edwards v. Elliott, 21 Wall. (U. S.) 532, 22 L. Ed. 487; Pearson v. Yewdall, 95 U. S. 294, 24 L. Ed. 436 ; with respect to the state constitutions where the right of trial by jury is secured, it continues invio late with respect to all cases triable by before the constitution was adopted ; Tribou v. Strawbridge, 7 Or. 156; Lee v. Tillotson, 24 Wend. (N. Y.) 337, 35 Am. Dec. 624; Mead v. Walker, 17 Wis. 190.
In New York where the action of account was before the constitution triable without a jury, under a colonial statute it has been held that long accounts in a counter-claim in an action on contract where the plaintiff's claim is disputed win not justify compulsory ref-, erence because the colonial practice only per mitted set-off with plea of payment, and therefore the statute could not have been ap plicable to a counter-claim when the plain tiff's cause of action was disputed ; Steck v. Iron Co., 142 N. Y. 236, 37 N. E. 1, 25 L. IL A. 67, and note collecting cases.
Unanimity in giving a verdict was not uni versal in the early days of the common law ; at times eleven sufficed ; in some cases a ma jority. Probably it was only in the second half of the fourteenth century that unanimity became an established principle; 5 Harv. L. Rev. 296, by Prof. J. B. Thayer. "The rule of unanimity of the jury was not fixed be fore the 14th century and it was probably never laid down in terms that juries must be unanimous. What was actually decided was that the verdict of fewer than 12 men would not suffice, and it became a fixed custom to have that number on the Pettit jury." Pol lock, Expans. C. L. 95.
The requirement of unanimity of twelve jurors arose from the custom. which taught men to regard it as the proper amount of ev idence to establish the credibility of a person accused of an offence; Forsyth, Trial by Ju ry 240. At common law, except as above stated, unanimity was essential to a verdict, so that it has been held that a conviction by eleven jurors, even where the accused waived a trial by twelve jurors, would be set aside ; Canoemi v. People, 18 N. Y. 128. "Unanimity was one of the peculiar and essential features of trial by jury at common law ;" American Pub. Co. v. Fisher, 166 U. S. 464, 17 Sup. Ct. 618, 41 L. Ed. 1079, supra; but the court ex pressly said that the power of a state to change the rule as to unanimity was not be fore them, and cited Walker. v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678 ; •Hurtado v. Califor nia, 110 U. S. 516, 4 Sup. Ct. 111, 292, 28 L.