State v. Van Matre , 49 Mo. 268 ( 1872 )

Adams, Judge,

delivered the opinion of the court.

This was a prosecution for assault and battery, commenced before a justice of the peace and taken tó the Common Pleas by appeal, where the defendant was tried by a jury of six men and found guilty, and a fine of $50 assessed against him. Final judgment was given on the verdict, and the defendant filed a motion in arrest, alleging as cause for arresting the judgment, that he had been tried by a jury of six men without his consent. This motion was overruled by the court. There was no bill of exceptions.

In criminal cases this court will look into the record, and, if error appears, will reverse the judgment. So also in criminal cases, whatever is good in arrest may be reached by writ of error. (McGee v. The State, 8 Mo. 495.)

It appears from this record that the defendant was tried by a jury of six men. It does not appear that he gave his consent to be tried by six men. Under the constitution of this State, in courts of common-law jurisdiction the defendant in criminal cases has the right to a panel of twelve jurors. So in civil cases, either party in common-law courts has the right to demand a jury of twelve men-. This seems to be the settled law of this State. (See Vaughn v. Scade, 30 Mo. 600; Foster v. Kirby, 31 Mo. 496; Henning v. Hann. & St. Jo. R.R. Co., 35 Mo. 408; Brown v. Hann. & St. Jo. R.R. Co., 37 Mo. 298; Const. Mo., art. I, §§ 17-8.)

Judgment reversed and cause remanded.

The other judges concur.