Capler v. City of Greenville
| Decision Date | 12 February 1968 |
| Docket Number | No. 44619,44619 |
| Citation | 207 So.2d 339 |
| Parties | Willie CAPLER v. CITY OF GREENVILLE. |
| Court | Mississippi Supreme Court |
James L. Robertson, Keady, Campbell & DeLong, Greenville, for appellant.
Robertshaw & Merideth, Bogen, Wilkes & McGough, Greenville, for appellee.
This case originated in the municipal court of the City of Greenville where Willie Capler was charged with operating a motor vehicle while under the influence of intoxicating liquor. Found guilty in municipal court Capler appealed to the County Court of Washington County where he was tried de novo and convicted. He was assessed with a fine of $100, then appealed to the circuit court where the judgment was affirmed. Pursuant to the provisions of Mississippi Code 1942 Annotated section 1616 (1956) the circuit court entered an order certifying that constitutional questions were involved in the case, thus qualifying the case for further appeal to this Court.
The facts stated in the light of the general verdict of guilty (and as established by the great weight of the evidence) are as next stated. At about one o'clock A.M., a police officer observed an automobile being driven on a Greenville street which was weaving from one traffic lane to the other. It nearly ran off the right side of the street. The officer stopped the automobile which was being driven by defendant. After defendant got out of his automobile the officer observed that defendant walked with a stagger and emitted a strong odor of alcohol. Defendant was arrested for reckless driving and driving while intoxicated. At the police station defendant was thick-tongued, his speech was slurred, and his conversation was practically incoherent. In short, he was drunk. The officers had no difficulty with defendant except he would not walk and had to be carried from the elevator to what some of the witnesses call the 'drunk tank', a large cell with a concrete seat around the side with a ventilator in the top. Defendant made no request to call a lawyer or anyone else. At that time the jailer had a rule that intoxicated persons usually remain in the 'drunk tank' for a period of six hours. At no time after his arrest was defendant advised that he had a right to a lawyer, however, sometime after daylight defendant requested permission to call a lawyer. This request was granted and defendant called his attorney. At all stages of the prosecution thereafter, including trial, defendant was represented by counsel of his choice.
The first question for our decision is whether the county court erred by overruling defendant's motion to quash the venire and in refusing to excuse for cause the women who were on the jury panel. Before the trial on the merits began, defendant filed a motion to quash the venire because of the fact that of 123 prospective jurors called for the term of court at which defendant was tried, forty were women. The court overruled the motion to quash the venire although the prosecution also requested the court to sustain it. Both the defendant and the prosecution requested that the women called to serve on the jury be excused for cause because they were women. The court announced at the beginning of the trial that no women would be excused for cause because they were women. The prosecution exercised the City's six peremptory challenges by excusing six women. The jury tendered to the defendant consisted of eleven men and one woman. The defendant challenged the one woman for cause on the sole ground that she was a woman. The court denied the challenge. The defendant then declined to challenge the woman peremptorily, although he had three peremptory challenges which were never used.
The trial court's affirmative action, over the objection of both the prosecution and defendant, in insisting that women serve on the jury was manifestly in violation of law. It should be noted at the outset of our discussion of this question that we are not saying that women should not serve on juries. It may be desirable that both men and women serve on juries, depending on one's point of view. We are saying that the legislature alone has the power to determine whether women serve as jurors. The Mississippi Constitution, section 264 vests in the legislature the power to provide for the qualifications of jurors. This court in State v. Hall, 187 So.2d 861 (Miss.1966) held that whether women should serve on juries is a matter to be determined by the legislature, and that the court would not take from the legislature that which the constitution has entrusted to it. This was reaffirmed in Pendergraft v. State, 191 So.2d 830 (Miss.1966). As late as December 4, 1967, this Court in Amis v. State, 204 So.2d 848 (Miss.1967) reiterated that legislative action rather than judicial action is necessary to modify the statute so as to include women on juries. These decisions are consistent with Mississippi Constitution, section 1 which divides the powers of government between the three branches, and section 2 which forbids any person or collection of persons, being one or belonging to one of these departments, from exercising any power belonging to either of the others. We must conclude therefore, that the county court erred in affirmatively requiring that women serve on the jury over the objection of the defendant and the City. If this course is followed in all cases it could result in seriously impeding the administration of the laws.
The question arises whether defendant is in a position to raise the issue that the jury was not lawfully constituted. The City argues that the defendant waived his rights in this respect by accepting the jury consisting of one woman and eleven men at a time when he could have excused the woman by exercising one of his three unused peremptory challenges. Counsel for defendant made the decision not to peremptorily challenge the woman juror after the court asked if the woman juror was to be challenged peremptorily. Defendant's counsel replied to the court as follows: 'No, I don't believe I will challenge her peremptorily.' Where a party chooses not to challenge a juror peremptorily when he has challenges that are unused, he may not thereby put the court in error because the court declined to permit the juror to be challenged for cause. Bone v. State, 207 Miss. 20, 41 So.2d 347 (1949). To hold otherwise would allow a party to invite error and take advantage of it on appeal; or, to put it otherwise, take advantage of an error he helped bring about. Moreover, it would allow a litigant to experiment with the verdict by taking advantage of an...
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...require that a person arrested for a misdemeanor involving drunkenness be advised of his right to counsel immediately upon being detained. In Capler the officer had noticed an automobile weaving from one traffic lane to another and nearly run off the side of the road. The officer stopped th......
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