People v. Barltz

• Decision Date: 21 December 1920
• Docket Number: No. 119.,119.
• Parties: PEOPLE v. BARLTZ.
• Court: Michigan Supreme Court

212 Mich. 580

180 N.W. 423

PEOPLE

v.BARLTZ.

No. 119.

Supreme Court of Michigan.

Dec. 21, 1920.

Certiorari to Recorder's Court of Detroit; Edward J. Jeffries, Recorder.

Harold Barltz was convicted of larceny, and he brings certiorari. Affirmed.

Argued before MOORE, C. J., and STEERE, BROOKE, FELLOWS, STONE, CLARK, BIRD, and SHARPE, JJ.Birnkrant, Birnkrant & Birnkrant, of Detroit (Saul J. Birnkrant, of Detroit, of counsel), for appellant.

Alex. J. Groesbeck, Atty. Gen., Matthew H. Bishop, Pros. Atty., and Collins B. Scott. Asst. Pros. Atty., both of Detroit, for the People.

STONE, J.

This case is here upon certiorari to review the trial and conviction of the defendant in the recorder's court of the city of Detroit upon a charge of larceny of property valued at $55.

Notwithstanding our opinion that a writ of error would be the more appropriate proceeding, the trial having been according to the course of the common law, we have concluded (as a single question of law is presented, and that one of considerable importance, and as the defendant is under sentence, and a writ of error could still issue as of course) to treat the case as though here upon writ of error.

The single question presented by this record is whether under our Constitution and statutes a woman can sit as a juror in a criminal case. In the instant case the jury was composed of 11 men and 1 woman, namely, Miss C. M. Gitzen. After exhausting his peremptory challenges, defendant challenged Miss Gitzen for cause, on the ground the she, being a woman, was prohibited by the Constitution of this state from sitting as a juror in the case. The challenge was overruled, exception duly taken, and error is assigned upon the ruling.

Counsel for defendant first call attention to section 19, art. 2, of our present Constitution, which provides that:

‘In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than twelve men in all courts not of record.’

It is said by counsel for defendant that we are not called upon to decide whether the Legislature can give women the right to serve on a jury, as the Legislature has made no such provision. And that the question is whether making them electors, in and of itself, makes them eligible to jury duty. Attention is called to the language of this court in McRae v. Railroad Co., 93 Mich. at page 405, 53 N. W. 561,17 L. R. A. 750, where Justice Long, speaking for the majority of this court, and referring to section 27, art. 6, of the Constitution of 1850, providing that ‘the right of trial by jury shall remain,’ said:

‘This right was a trial by a jury of 12 men, good and true.’

And attention is also called to Hill v. People, 16 Mich. 351; and it is urged that the common law provided for a jury composed of men, and that our Constitution has preserved this qualification, and specially states that the jury shall be composed of men. It is well here that we call attention to article 3, § 1, of the present Constitution, as amended at the November election of 1918 (see Laws 1919, p. 768):

‘In all elections every inhabitant of this state being a citizen of the United States * * * shall be an elector and entitled to vote. * * * And provided further, there shall be no denial of elective franchise at any election on account of sex.’

Counsel refer to our general statute relating to jurors, being section 12190, Comp. Laws 1915, and add that in this state only those persons being citizens having the qualifications of electors are eligible for jury service who are ‘in possession of their natural faculties, and not infirm or decrepit, of good character, of approved integrity, of sound judgment, and well informed and conversant with the English language, and free from all legal exceptions.’

It is said by counsel for appellant:

‘Our question is not whether the Legislature of the people should alter the personnel of our juries, but whether they have done so.’

The only case cited in support of their claim is that of In re Grilli, 110 Misc. Rep. 45,179 N. Y. Supp. 795. It will be observed that this decision is not that of a court of last resort. The Supreme Court of New York seems to have held that the right of jury service in that state was not incidental to, and a part of, suffrage, and was not conferred upon women by the amendment to the state Constitution granting women the right to vote.

We do not understand that any question is raised here as to the right of Miss Gitzen to vote under article 3, § 1, of the Constitution as amended, nor that she was not in every way a qualified juror, unless it be by reason of her sex; and the only question presented is whether or not under the existing Constitution and laws of this state a woman is entitled to sit as a juror in a criminal case in a court of record, she being an elector in possession of her natural faculties, etc.

Counsel for the people call attention to section 27 of article 5 of our present Constitution, reading as follows:

‘The Legislature may authorize a trial by a jury of a less number than twelve men.’

And the question is raised by counsel for appellee whether our Constitution, in view of all its provisions, has impliedly guaranteed trial by 12 men in courts of record-a question that we do not deem it necessary for us to decide. Conceding and not deciding that there was such implication before the amendment of section 1 of article 3 of the Constitution, we proceed to inquire what the effect of the adoption of this amendment was. In construing the Constitution it should be given the meaning that the people intended it should have. It should be construed, if its language is appropriate, so that it will accomplish the purpose the people intended it to accomplish. Upon the general question of how provisions of the Constitution should be construed, the following authorities are pertinent: Bay City v. State Treasurer, 23 Mich. 499;People v. Harding, 53 Mich. 481, 19 N. W. 155;Bay County Supervisors v. Edmunds, 139 Mich. 466, 102 N. W. 998;Attorney General v. Board of Assessors, 143 Mich. 73, 106 N. W. 698;Attorney General v. Detroit Common Council, 148 Mich. 71, 111 N. W. 860;Kearney v. Board of State Auditors, 189 Mich. 666, 155 N. W. 510.

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. We need but refer to the statute (section 5 of act 5 of the Session Laws of 1895) to determine the qualifications of jurors in Wayne county. The language as to their qualifications is substantially the same as in the general statute, which we have quoted. This court has repeatedly said that an elector was qualified as a joror if he possessed the requisite intelligence and other qualifications. See People v. Collins, 166 Mich. 4, 9, 131 N. W. 78, citing People v. Scott, 56 Mich. 154, 22 N. W. 274;People v. Rosevear, 56 Mich. 158, 22 N. W. 276;People v. Considine, 105 Mich. 149, 63 N. W. 196.

It seems clear to us that by making a woman an elector she is thereby placed in a class which makes her eligible for jury duty. A case almost directly in point on this proposition is that of Rosencrantz v. Territory of Washington, 2 Wash. T. 267,5 Pac. 305. We are aware that this case has since been overruled by a divided court in Harland v. Washington, 3 Wash. T. 131,13 Pac. 453, but the language of the Rosencrantz Case is so appropriate and the reasoning so clear that we are disposed to adopt it. The court there said:

‘The Code of 1881 provides that all electors and householders shall be competent grand jurors, and it is claimed by plaintiff in error that this must be held to apply to only such persons as were thus qualified at the time such provision was enacted, and not to such as should thereafter become endowed with such requisite qualifications; but to us it seems clear that the Legislature intended simply to prescribe what classes of persons in society, as it was then, or should be thereafter constituted, should be called upon to perform such jury duty, and that whenever a person by any change in his condition was brought within such requirements, he at once became liable to perform such duty, and that likewise where, by a change in the law, a class of persons was brought within such requirements, the members of such class at once became liable to society for all the obligations incident to the class of electors and householders of which they had thus become members.’

In our opinion the adoption of the amendment to section 1 of article 3 of the Constitution had the effect to modify the provisions of the Constitution which we have alluded to. That is to say, the provisions should all be construed together. If making women electors qualified them for jury duty, then men alone were not required to serve as jurors;...