Defendant was tried and convicted of an assault with a deadly weapon upon Louis Porter and Charles Porter, and from the judgment upon such conviction appealed to the Supreme Court.
In the record of the case sent to this Court, it appears that the jury which tried defendant was composed of only ten men.
The Constitution of North Carolina, Art. I, sec. 13, provides: "No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court. The Legislature may, however, provide other means of trial for petty misdemeanors with the right of appeal."
Nash, C. J., in S. v. Moss, 47 N.C. p. 68, says: "These principles are dear to every freeman; they are his shield and buckler against wrong and oppression and lie at the foundation of civil liberty; they are declared to be rights of the citizens of North Carolina, and ought to be vigilantly guarded."
Ashe, J., in S. v. Stewart, 89 N.C. p. 564, says: "It is a fundamental principle of the common law, declared in `Magna Charta,' and again in our Bill of Rights, 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, sec. 13. The only exception to this is, where the Legislature may provide other means of trial for pretty misdemeanors with the right of appeal — Proviso in same section."
In S. v. Rogers, 162 N.C. p. 659, Brown, J., says: "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. 1." S.v. Holt, 90 N.C. 749; S. v. Cutshall, 110 N.C. 538; S. v. Wood,175 N.C. 809; Bartholomew v. Parrish, 186 N.C. 85.
The record proper "imports verity." S. v. Wheeler, 185 N.C. p. 670; S.v. Palmore, 189 N.C. p. 538.
Waiver of certain privileges and rights was discussed recently by Stacy,C. J., in S. v. Hartsfield, 188 N.C. p. 357, and we need not repeat here.
The defendant waived nothing, but insisted on his rights, as the record disclosed. It appearing by the record that the defendant was tried and convicted by ten men, the conviction was improper and no judgment could be rendered. For the reason given, there must be a
New trial.