Defendant assigns as error the failure of the trial court to order a mistrial for the reason that an alternate juror was present in the jury room with the jury after they began their deliberations. The assignment must be sustained.
The record discloses: The court concluded its charge to the jury at 11:35 a.m., instructed the jury to go to their room to deliberate on their verdict, and took a ten minutes recess. Immediately following the recess, and being informed that it had failed to excuse the thirteenth juror, the court had the jury returned to the courtroom. The court asked the jurors several questions including whether they had “begun discussing or deliberating upon the merits of the case.” The foreman replied that they had.
In the recent case of State v. Bindyke, 288 N.C. 608, 623-27, 220 S.E. 2d 521, 531-33 (1975), in an opinion by Chief Justice Sharp, our Supreme Court said:
The rule formulated by the overwhelming majority of the decided cases is that the presence of an alternate, either during the entire period of deliberation preceding the verdict, or his presence at any time during the deliberations of the twelve regular jurors, is a fundamental irregularity of constitutional proportions which requires a mistrial or vitiates the verdict, if rendered. And this is the result notwithstanding the defendant’s counsel consented, or failed to object, to the presence of the alternate. (Numerous citations.)
* * *
After considering the decisions expounding both the majority and minority views we are constrained to adopt the majority rule and hold that the presence of an alternate in the jury room during the jury’s deliberations vio*117lates N. C. Const, art. I, § 24 and G.S. 9-18 and constitutes reversible error per se.
* * *
... We hold that at any time an alternate is in the jury room during deliberations he participates by his presence and, whether he says little or nothing, his presence will void the trial.
While the court’s inquiry in the case at bar revealed that the alternate juror did not sit at a table with the twelve jurors while they began their discussion and deliberation, the fact remains that the alternate was present, thereby voiding the trial. Commendably, the able trial judge, by questioning the jurors, attempted to establish before verdict that defendant had not been prejudiced; nevertheless, the rule laid down in Bindyke was clearly violated.
It is true that when the alternate was removed the court advised defense counsel that if he would move for a mistrial, the motion would be granted; and that counsel, after conferring with defendant, informed the court that defendant did not wish to make such motion. Again we quote from the opinion in Bindyke, 288 N.C. at 623, 220 S.E. 2d at 530: “An unbroken line of North Carolina cases hold that in felony- trials the accused must be tried by a jury of twelve and he cannot consent to a lesser number. The rule is restated and authorities cited in State v. Hudson, 280 N.C. 74, 185 S.E. 2d 189 (1971).”
If a defendant in a felony trial cannot consent to a trial by fewer than twelve jurors, we fail to perceive how he can assent to deliberations by more than twelve. In People v. Bruneman, 4 Cal. App. 2d 75, 40 P. 2d 891 (1935), one of the cases cited and quoted from in Bindyke, the California court held that the constitution of that state guaranteed a defendant the right of trial by jury as the right existed at common law, and one of the essential characteristics of the common law jury is that “twelve persons, not more nor fewer, shall pass upon the issues of fact.”
For the reasons stated, the defendant is awarded a
New trial.
Judges Hedrick and Martin concur.