Ex Parte Bracklis

The petitioner was charged with the commission of a felony. He was convicted thereof by a jury of twelve men.

He sets out in his petition that one of these jurors was not a competent juror, in that he was not in possession of his natural faculties and was so decrepit that he was unable to comprehend the nature or character of the charge upon which the said A. P. Bracklis was being tried and was unable to comprehend the nature and effect of the testimony adduced during the trial.

He argues from this that the jury consisted of but eleven men and that he was therefore deprived of his constitutional right of trial by jury.

1. It may be conceded that a jury in a felony case must consist of twelve men and that a defendant on trial cannot waive his right to such a jury. The right secured by the constitution is the right as it was known at common law. (People v. Powell, 87 Cal. 349 , [11 L. R. A. 75, 25 Pac. 481 ]; Matter of O’Connor, 29 Cal. App. 225 , [ 155 Pac. 115 ].) At common law as well as under the constitutional provision, a jury in a felony case must consist of twelve.

2. It is a general doctrine in this state that a party on trial must depend upon his examination of the…