McDaniels v. State, Criminal 954

• Decision Date: 11 April 1945
• Docket Number: Criminal 954
• Citation: 62 Ariz. 339,158 P.2d 151
• Parties: FRED McDANIELS, Appellant, v. THE STATE OF ARIZONA, Appellee
• Court: Arizona Supreme Court

158 P.2d 151

62 Ariz. 339

FRED McDANIELS, Appellant, v. THE STATE OF ARIZONA, Appellee

Criminal No. 954

Supreme Court of Arizona

April 11, 1945

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge.

Judgment affirmed.

Mr Jacob Morgan, for Appellant.

Mr. Joe Conway, Attorney General, Mr. Thomas J. Croaff, Assistant Attorney General; Mr. James A. Walsh, County Attorney, and Mr. Edwin Beauchamp, Deputy County Attorney, for Appellee.

De Concini, Superior Judge. Stanford, C. J., and Morgan, J concur.

OPINION

De Concini, Superior Judge.

This case is on appeal by the defendant Fred McDaniels, who was convicted in the lower court of the crime of assault with a deadly weapon, a felony, on one Andrew J. Botcher.

On the 4th day of March, 1944, the defendant and the complaining witness, Andrew J. Botcher, had been drinking throughout the day in various bars in the City of Phoenix, Arizona. At approximately one o'clock a. m., on the 5th day of March, 1944, these two men were walking west on Washington Street and after having crossed the intersection of 2nd Street with the said Washington Street, an argument arose, at which time the defendant drew a paring knife from his pocket and stabbed and cut the complaining witness thereby puncturing his lung and liver and confined him to the hospital for several weeks.

The defendant brings this appeal and cites twelve assignments of error under eight, propositions of law. The court will discuss these propositions separately. Propositions Nos. 2 and 4 will be discussed under Proposition No. 2, making seven propositions of law all together.

The first three assignments of error are treated under the proposition that defendant was not accorded due process of law in his trial because no women were called on the jury panel and therefore he was denied the right to have women on his trial jury. Defendant claims that Section 6 of Article 6 was violated by legislation in limiting jury duty to men only because the Constitution says "a trial jury shall be drawn and summoned from the body of the county at least three times a year." Miller v. Wilson, 1942, 59 Ariz. 403, 129 P.2d 668, 670, holds that "if a constitutional provision grants a right which can be put into operation without further legislative action, the provision is self-executing." The question then arises, is this provision self-executing? It is not, because it was necessary for the legislature to provide the manner in which jurors would be drawn, their qualifications, those who are exempt, etc.

At the time of the adoption of the Constitution, woman were given the right to vote and hold office under Article 7, Section 2. They could not serve on juries because Paragraph 2781 of the 1901 Code (Civil) limited jurors to male citizens of the United States. No mention of the right of women to sit on juries was made in the Constitution in the face of an already existing statute which prohibited them from so serving.

It is not unreasonable to conclude that neither the framers of the Constitution nor the people in adopting same meant to override an existing law directly in conflict with the Constitution, if no mention of it were made.

Under the Constitution, Arizona was admitted to statehood in 1912. In 1913, the legislature re-enacted Paragraph 2781 of the 1901 Code, which is Section 37-102 of the 1939 Code, which limits jurors to male citizens. In Denison v. State, 1928, 34 Ariz. 144, 268 P. 617, this court stated "the qualifications of jurors in the state of Arizona are not prescribed by the Constitution, but are found in . . . R. S. A.," and inferentially approved same.

When the Constitution refers to a jury it refers to a jury as it was under the common law, and under that law a jury was no jury unless it was composed of men. 31 Am. Jur. 557. To put a different interpretation on the Constitution would amount to changing it in a manner not thought of by its originators. The fact that Section 43-103 of the 1939 Code provides "words used in the masculine gender include the feminine and neuter" is not sufficient to include women as jurors. "From the earliest period in the history of the common law, juries grand and petit, have been composed exclusively of men." People v. Lensen, 1917, 34 Cal.App. 336, 167 P. 406; State v. Kelley, 39 Idaho 668, 229 P. 659.

The passage of the 19th Amendment to the Constitution of the United States granting women the right to vote does not mention their right to serve on juries. It conferred no new rights on women in Arizona because they were already granted the right of suffrage by the State Constitution. State v. Kelley, supra; Harland v. Territory, 1887, 3 Wash.Terr. 131, 13 P. 453; 35 C. J. 245.

The legislature did not violate Article 4, Pt. 2, Sec. 19 of the Constitution by passing a special law relating to summoning and empaneling juries. The Constitution not having given women the right to serve on juries, the law limiting jurors to male citizens only is not a special law because the matter of serving on a jury is not a matter of choice, but is a duty imposed by the state. Maricopa County v. Corp, 1934, 44 Ariz. 506, 39 P. 2d 351. Therefore, if the performance of jury duty is an obligation and not a right, the legislature has the power so to limit it. See State v. Emery, 1944, 224 N.C. 581, 31 S.E.2d 858.

The judicial history of this state, although not controlling, justifies the position that the law prior to 1945 never intended to have women serve on juries. Since the adoption of the Constitution in 1911 and the passage of the 19th Amendment in 1920, the jury laws of this state have been construed by the bar and state to limit the jury duty to men. To change it at this late date might well cause unknown confusion affecting countless verdicts of the past.

Women have the right to vote and hold office in this state. There is no reason why they should not bear the duty of jury service, if the legislature seeks to place that duty upon them. The 17th Legislature, which has just recently adjourned, passed House Bill No. 12, known as the "Women's Jury Bill," which by reason of the emergency clause thereon became a law on March 9, 1945, the day it was signed by the Governor.

Proposition of Law Nos. 2 and 3. Instructions refused on lesser or included offenses. -- Appellant claims error in the trial court's failure to instruct the jury on the question of simple and aggravated assault; and also the failure of the court to submit forms of verdict permitting the jury to return a verdict on simple or aggravated assault. The statute relied on by defendant, Section 44-1923, Arizona Code Annotated 1939, provides that "Upon an indictment or information for any offense the jurors may convict the defendant of . . . any offense which is necessarily included in the offense charged."

Section 43-603, Arizona Code Annotated 1939, defines aggravated assault. The portion that might be applicable to this case is the 5th subdivision: "when a serious bodily injury is inflicted upon the person assaulted; . . . ." The question then arises, is an aggravated assault necessarily included in a charge with an assault with a deadly weapon? The answer is, No!

The defendant relies heavily on State v. Hanks, 58 Ariz. 77, 118 P.2d 71, 73, because this court upheld the proposition that it was not error to instruct the jury and to permit it to bring in a verdict of aggravated assault on a charge with intent to commit murder. In that case, Subdivision 6 of 43-603 was construed instead of Subdivision 5 with which we are here concerned. We held in that case that when a man commits "an assault with intent to commit murder" he impliedly intends to inflict serious bodily harm and he does so "with a premeditated design." The two cases are readily distinguishable.

Furthermore, in the Hanks case, we said:

". . . For instance, one could be guilty of the higher offense without going into a private home and there committing an assault. This proposition is not disputed as to the first four subdivisions of this section, but some question is raised as to the fifth, that is, there is some contention that an assault with intent to commit murder includes an assault which inflicts a serious bodily injury upon the person assaulted. The fallacy of this view readily appears, however, when it is suggested that one may be guilty of an assault with intent to commit murder without inflicting upon the person assaulted any bodily injury at all, serious or otherwise. For instance, if a person shoots at another intending to kill him, and the bullet pierces the clothing of the latter only, or misses him entirely, no bodily injury whatever is inflicted, yet there could be no question but that the person firing the shot would be guilty of an assault with intent to commit murder."

The same law is applicable to this case.

The mere fact that the defendant did commit serious bodily injury is no reason why the jury should be given an instruction and alternate verdict on a lesser offense.

The court has reviewed Dunn v. State, 50 Ariz. 473, 73 P.2d 107. It is not in point with this case. While there is dictum to the contrary therein, we hold that State v. Hanks, supra, is controlling.

Where only one crime is charged in the information as in this case, the court below after hearing the proof and defense had the right to instruct that only one verdict should be used.

This case is also distinguishable from Uren v. State, 27 Ariz. 491, 232 P. 398, relied on by the defendant, because in this case the evidence did not warrant an instruction and verdict on a lesser or included offense.

As to the matter of the simple assault. -- The information necessarily charges a simple assault when it charges ...