Commonwealth v. Maxwell

• Decision Date: 01 July 1921
• Docket Number: 63
• Citation: 114 A. 825,271 Pa. 378
• Parties: Commonwealth, Appellant, v. Maxwell et al
• Court: Pennsylvania Supreme Court

114 A. 825

271 Pa. 378

Commonwealth, Appellant, v. Maxwell et al

No. 63

Supreme Court of Pennsylvania

July 1, 1921

Argued May 23, 1921

Appeal, No. 63, Jan. T., 1922, by plaintiff, from order of O & T. Erie Co., May T., 1921, No. 39, making absolute rule to quash indictment, in case of Commonwealth v. Fred Maxwell et al. Reversed.

Rule to quash indictment. Before ROSSITER, P.J.

The opinion of the Supreme Court states the facts.

Rule absolute. The Commonwealth appealed.

Error assigned, among others, was order, quoting it.

The order quashing the indictment is reversed, and the indictment is reinstated with direction to the court below to proceed with the trial of the defendants in due course.

C Arthur Blass, District Attorney, with him Otto Herbst, Assistant District Attorney, for appellant. -- It seems to be the settled law in all states, that the qualifications of jurors are matters of legislative control, even though the qualifications laid down by the legislature differ from those at the common law: In re Mana, 178 Cal. 213.

John R. Haughney, with him Lytle F. Perry, for appellees. -- There is no law known to the Commonwealth, either express or implied, giving to women the right to serve upon either the grand or petit jury.

Women are not entitled to vote by virtue of the 14th or 15th Amendments to the Constitution of the United States: Van Valkenburg v. Brown, 43 Cal. 43; U.S. v. Reese, 92 U.S. 214; U.S. v. Cruikshank, 92 U.S. 542; Wood v. Fitzgerald, 3 Or. 568; U.S. v. Petersburg Judges, 14 Am. Law Reg. 105; In re Grilli, 179 N.Y.S. 795.

A trial by jury as heretofore means a trial by those answering the description set forth in the act of assembly: Smith v. Times Pub. Co., 178 Pa. 481.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

In this case, the court below quashed an indictment, charging the defendants with murder, because a woman served on the grand jury which found the bill. The Commonwealth has appealed; and this brings before us the important question whether women are eligible as jurors in Pennsylvania.

It is conceded that, under the 19th Amendment to the Constitution of the United States, women are given the right to vote, and are therefore electors; but the oyer and terminer held that the provision of our Constitution (article I, section 6), -- "Trial by jury shall be as heretofore and the right thereof remain inviolate," -- preserves in this State trial by jury as it existed at common law, and that neither the federal amendment nor its effect upon the Act of April 10, 1867, P.L. 62, providing for the selection of jurors, alters the ancient rule that men only may serve.

Let it be noted that what we are called upon to determine is the composition of juries, so far as the qualifications of jurors are concerned, not the conduct of trials before such a body nor the kinds of cases which under the Constitution must be decided by that character of tribunal.

At the time the provision we are considering was placed in Pennsylvania's first Constitution, in 1776, justice had been administered in the Commonwealth according to English forms for about a century. Does the word "heretofore" refer to jury trials as conducted in England or in Pennsylvania? We find the method of selecting juries and the qualifications of jurors, at the time of the promulgation of this Constitution, September 28, 1776, was regulated in Pennsylvania and in England by legislation and not by the common law, in the latter country by the Act of 3 George II, c. 25; 3 Blackstone 361.

Under the laws of the Duke of Yorke, April 2, 1664, (Duke of Yorke's Book of Laws, 1682-1700, page 33), which were in force in Pennsylvania, it was provided, for the summoning of jurors, that the constable shall warn so many of the overseers to attend as jurymen and return their names to the under sheriff. It was also provided "No jury shall exceed the number of seven, nor be under six, unless, in special causes upon life and death, the justice shall think fit to appoint twelve." By an amendment (Duke of Yorke's Book of Laws, p. 69) it was provided, "In all cases to be tried by juries at the General Court of Assizes the number of jurors shall be twelve, but at the several Courts of Sessions the same number is sufficient as already in the law is set forth." "The Frame of Government of the Province of Pennsylvania," confirmed by the first provincial council May 5, 1682, provided: "Eighth. That all trials shall be by twelve men, and as near as may be peers, or equals, and of the neighborhood, and men without just exception" (Duke of Yorke's Book of Laws, 1682-1700, page 100). "The Great Law or the Body of Laws" of the Province of Pennsylvania passed at an assembly held in Chester, December 7, 1682, provided: "Chapter XXXVIII. That all trials in civil cases, shall be by twelve men, and, as near as may be, peers or equals and of the neighborhood, and men without just exception" (Duke of Yorke's Book of Laws, page 117). This law was abrogated by William and Mary in the year 1693. It was reenacted, however, the same year, June 1, 1693, by chapter 25 of "A Petition of Right" (Duke of Yorke's Book of Laws, page 199). From this review of the early statutes, it will be seen that the framers of the Constitution of 1776 knew that legislation determined the qualifications of jurors, not the common law, and, as will be hereafter demonstrated, specifically provided that this method should continue. After the promulgation of our first fundamental law, an act was passed, on March 19, 1785 (2 Statutes at Large 486), entitled "An Act for the better regulation of jurors," which provides (section 2) the sheriff shall summon "sober and judicious persons of good reputation and none other."

Following the adoption of the Constitution of 1790, the legislature provided the method by which jurors should be selected. By the Act of March 29, 1805, P.L. 183, chapter LXV, "An Act directing the mode of selecting and returning jurors," it was enacted, that "in each county of this Commonwealth the sheriff and county commissioners, or any two of said commissioners, with the sheriff, shall meet at the seat of justice at least thirty days previously to the first court of common pleas to be holden in each and every year, and shall then and there select, from the list of taxable citizens, the names of a sufficient number of sober and judicious persons, to serve as jurors at the several courts hereinafter mentioned." The Act of April 4, 1807, P.L. 124, contained the provisions, "It shall be the duty of the assessors of the several townships and districts within this Commonwealth, and of the assessors of the several wards in the City of Philadelphia, and of each borough, to return the names of all the white male taxable citizens, liable to serve as jurors, of competent ability, understanding, and knowledge of the English language, to the county commissioners of their respective counties; and it shall be the duty of the county commissioners aforesaid, to deposit the names of the persons, so returned to them, in the proper wheels in proportion to the numbers requisite for each." The Act of February 13, 1816, P.L. 52, further regulated the subject; it says, "In each county of this Commonwealth, the sheriff and county commissioners, or any two of the said commissioners with the sheriff, shall meet at the seat of justice at least thirty days previously to the first court of common pleas to be holden in each and every year, and shall, then and there, select from the list of taxable citizens, the names of a sufficient number of sober, intelligent and judicious persons, to serve as jurors at the several courts to be held in each county, respectively, for that year." An examination of the Act of April 14, 1834, P.L. 341, "An Act relative to the organization of the courts of justice," shows that it regulated the whole subject of selecting jurors; section 85 provides that "The sheriff, and at least two of the commissioners of every county, shall, at least thirty days previously to the first term in every year of the court of common pleas of the respective county, meet, and thereupon proceed with due diligence to select, at the seat of justice thereof, from the taxable citizens of the county, a sufficient number of sober, intelligent and judicious persons, to serve as jurors in the several courts of such county in which juries shall be required to be holden therein during that year."

The Act of March 27, 1865, P.L. 779, entitled "An Act for the better and more impartial selection of persons to serve as jurors, in the several courts of Somerset, Bedford, Fulton, Westmoreland, Perry, Juniata Counties," required the election of two jury commissioners for these counties, repealed so much of any acts of assembly as made it the duty of the sheriff and county commissioners to select and draw jurors, and required the jury commissioners to select "from the whole male taxable citizens, of the respective county, at large, a sufficient number of sober, intelligent and judicious persons, to serve as jurors, in the several courts of such county, during that year."

Under the Act of April 10, 1867, P.L. 62, section 2, (2 Purdon 2062, placitum 2), which expressly applies to each of the counties in the Commonwealth, except Philadelphia, the jury commissioners are required to select "from the whole qualified electors of the respective county, at large, a number," such as shall be designated by the court of common pleas, "of sober, intelligent and judicious persons, to serve as jurors in the several courts of such county during that year." The seventh section of this act exempts Philadelphia from its provisions. The statutory enactment...