Driggs

The defendant was charged with the crime of assault with intent to commit murder, in an information filed by the district attorney of the county of Butte. Upon the trial, a verdict of guilty of assault with a deadly weapon, was returned by the jury. The defendant thereupon moved for a new trial, which was granted. From the order granting a new trial the People prosecute this appeal.

The argument of counsel directs our attention first to the fact that while twelve jurors were sworn to try this cause, one of the jurors became too ill to act, and the attorneys, together with the defendant, consented that the trial might proceed with the presence of only eleven jurors, and that the verdict rendered by such a jury is regular and valid.

The contention on the part of the People is advanced that by the recent amendment to section 7 of article I of the Constitution, whereby it is provided that a defendant in a felony case may waive trial by jury, the right and authority is necessarily included to waive trial by a jury of twelve persons. In support of this contention is the case of Patton et al. v. United States, 281 U. S. 276 [ 74 L. Ed. 854 , 50 Sup. Ct. Rep. 253], decided April 14,…