Palmer v. State

• Citation: 197 Ind. 625,150 N.E. 917
• Decision Date: 18 February 1926
• Docket Number: No. 24794.,24794.
• Parties: PALMER v. STATE.
• Court: Supreme Court of Indiana

197 Ind. 625

150 N.E. 917

PALMER

v.STATE.

No. 24794.^*

Supreme Court of Indiana.

Feb. 18, 1926.

Appeal from Vigo Circuit Court; John P. Jeffries, Judge.

Harry Palmer was convicted of receiving stolen goods, and he appeals. Affirmed.

Adamson & Gallagher and Russell Blair, all of Terre Haute, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

GEMMILL, J.

In this case, the appellant was charged by indictment in the Vigo circuit court with receiving stolen goods, to wit, one automobile, on November 30, 1923. The indictment was predicated on section 2273, Burns' 1914. Appellant filed a verified plea in abatement to the indictment, to which the state demurred, on the ground that same did not state facts sufficient to abate the action. The demurrer was sustained. The appellant filed a motion to quash the indictment. Same was overruled. The appellant then entered a plea of not guilty. The trial was by the court, a jury having been waived. The court found the defendant guilty as charged in the indictment, and pronounced judgment in accordance with the provisions of said section, under which the indictment was drawn. A motion for a new trial was filed and overruled. The appellant excepted to all of said rulings. On appeal, the rulings on the demurrer to the plea in abatement, on the motion to quash the indictment and on the motion for a new trial, are assigned as errors.

In the plea in abatement, it was alleged that the grand jury which returned the indictment at the February term, 1924, was illegal, and that the said indictment was void, for the reason that one of the persons composing the grand jury was a woman. It was stated that she acted as foreman thereof, that she participated in the investigation, voted on the return of the indictment and that, as foreman, she indorsed on the back of the indictment “A true bill,” and signed same.

[1] It is not necessary for us to review the history of the qualifications of jurors in general or in this state. Suffice to say that at common law women were not qualified to serve as jurors, with only one exception. And it is now settled, beyond any controversy, that qualifications of jurors are matters of legislative control, even though the qualifications laid down by the Legislature differ from those of the common law.

In the Bill of Rights of the Indiana Constitution (article 1, § 13, being Burns' 1926, § 65), it is provided:

“In all criminal prosecutions, the accused shall have the right to a public trial by an impartial jury in the county in which the offense shall have been committed.”

From April 15, 1881 (Acts 1881, c. 69, § 9), to May 31, 1917, our law on qualifications of jurors was as follows:

“To be qualified as a juror, a person must be a resident voter of the county and a freeholder or householder.” Burns' 1914, § 1674.

In 1917, the General Assembly amended said law to read thus:

“To be qualified as a juror, either grand or petit, a person must be a resident voter of the county, and a freeholder or householder. Any person shall be excused from acting as a juror who is over sixty years of age and desires to be excused for such reason.” Acts 1917, c. 176; Burns' 1926, § 1833.

This law was in force on March 20, 1924, the day appellant was indicted. The Nineteenth Amendment to the Constitution of the United States in regard to woman suffrage became effective on August 26, 1920. Same is as follows:

“1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. 2. Congress shall have power, by appropriate legislation, to enforce the provisions of this article.”

And section 2 of article 2 of the state Constitution, in regard to the qualification of electors, which provided that only males should be voters, was amended at the special election held on September 6, 1921 (see Acts 1921, c. 281, § 1), to read:

“In all elections not otherwise provided for by this Constitution, every citizen of the United States, of the age of twenty-one years and upwards, who shall have resided in the state during the six months, and in the township sixty days, and in the ward or precinct thirty days, immediately preceding such election, shall be entitled to vote in the township or precinct where he or she may reside.” Burns' 1926, § 91.

[2] Where, by statute, jurors are to be selected from qualified electors, the adoption of a constitutional amendment making women electors qualifies them for jury duty. Parus v. District Court (1918) 174 P. 706, 42 Nev. 229, 4 A. L. R. 140;People v. Barltz (1920) 180 N. W. 423, 212 Mich. 580, 12 A. L. R. 520;State v. Walker (1921) 185 N. W. 619, 192 Iowa, 823;Commonwealth v. Maxwell (1921) 114 A. 825, 271 Pa. 378, 16 A. L. R. 1134. In these states the statutory qualifications for jurors are similar to those of Indiana. In Nevada (Rev. Laws 1912, § 4929) “every qualified elector *** is a qualified juror”; in Michigan (Comp. Laws 1915, § 12190) jurors shall be selected from, “citizens having the qualifications of electors”; in Pennsylvania (Pa. St. 1920, § 12861) jurors shall be selected “from the whole qualified electors of the *** county”; and in Iowa (Code 1924, § 10842) “all qualified electors of the state, *** are competent jurors in their respective counties.”

In People v. Barltz, supra, the court said:

“What was the purpose and object of the people in adopting the constitutional amendment, striking out the word ‘male’ from the Constitution? Was it not to do away with all distinction between men and women as to the right to vote, or as to being electors? We think there can be but one answer to this question, and that is that the purpose was to put women upon the same footing as men with reference to the elective franchise. What then was the result? Women became thereby electors. The moment a woman became an elector under the constitutional amendment she was entitled to perform jury duty, if she was possessed of the same qualifications that men possessed for that duty. In other words, she was placed in a class of citizens and electors, from which class jurors were, under the statute, to be selected.”

And in Commonwealth v. Maxwell, supra, it was said by the court:

“We have then the act of 1867 [Pa. St. 1920, § 12861], constitutionally providing that the jury commissioners are required to select ‘from the whole qualified electors of the respective county *** persons to serve as jurors in the several courts of such county,’ and the Nineteenth Amendment to the federal Constitution putting women in the body of electors. *** If the act of 1867 is prospective in operation, and takes in new classes of electors as they come to the voting privilege from time to time, when necessarily women being electors are eligible to jury service. That the act of 1867 does cover those who at any time shall come within the designation of electors, there can be no question.”

In Neal v. Delaware (1880) 103 U. S. 370, 26 L. Ed. 567, it was held that the adoption of the Fifteenth Amendment to the federal Constitution rendered inoperative a provision in the then existing Constitution of a state, whereby the right of suffrage was limited to the white race; and therefore a statute confining the selection of jurors to persons possessing the qualifications of electors was enlarged in its operation so as to embrace all those who, by the Constitution of the state, as modified by that amendment, were entitled to vote. And in 25 R. C. L. 778, it is said:

“It is a rule of statutory construction that legislative enactments in general and comprehensive terms, prospective in operation, apply alike to all persons, subjects, and business within their general purview and scope coming into existence subsequent to their passage.”

In some other states, the highest courts have arrived at a different conclusion from that stated as to the effect of the Nineteenth Amendment. In re Opinion of Justices (1921) 130 N. E. 685, 237 Mass. 591, which was an opinion of the justices of the Supreme Judicial Court of Massachusetts to the House of Representatives, it was held that the federal Constitution with the Nineteenth Amendment and the Constitution and laws of that state did not make women eligible to serve as jurors, that legislation was necessary to make them competent to so act, and that the trial by jury preserved by the state Constitution was the common-law trial by jury in its indispensable characteristics, as established and known at the time the Constitution was adopted. In State v. James (1921) 114 A. 553, 96 N. J. Law, 132, 16 A. L. R. 1141, it was decided that the statute of New Jersey, in force at the time of the indictment and trial of the defendant, while not providing in terms that men should be summoned as jurors, contained a distinct recognition of the common-law qualification that men only should be impaneled, by the use of the personal pronouns of the masculine gender “he” and “his,” in describing the persons who should be selected as...