State v. Chase
| Decision Date | 19 December 1922 |
| Citation | 106 Or. 263,211 P. 920 |
| Parties | STATE v. CHASE. [*] |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.
J. J Chase was convicted of rape, and he appeals. Affirmed.
The defendant was indicted for the crime of rape alleged to have been committed by having unlawful sexual intercourse with one Lydia Craig, a female child of the age of nine years.
On the trial a number of exceptions were taken, the assignments of error in the brief being as follows:
Assignment I questions the validity of section 10 of chapter 273, Laws 1921, purporting to amend section 1520, Or. L., and reading as follows:
"In criminal actions, the trial jury shall consist of twelve persons, unless the parties consent to a less number, and in all cases in which a minor under the age of eighteen years is involved, either as defendant or as complaining witness, at least one-half the jury shall be women, and the trial jury is formed in the manner prescribed in chapter II of title II of the Code of Civil Procedure except as otherwise expressly provided in this chapter."
Assignment II suggests as error the ruling of the court permitting the prosecuting attorney to propound leading questions to the witness Lydia Craig.
Assignment III raises the question as to the sufficiency of the evidence regarding penetration.
The fourth assignment relates to the failure of the court to give certain statutory instructions.
The defendant was convicted, and appeals.
E. O Potter and O. H. Foster, both of Eugene (Potter, Foster & Immel, of Eugene, on the brief), for appellant.
C. N Johnston, Dist. Atty., of Eugene (Gordon S. Wells, of Eugene on the brief), for the State.
McBRIDE, J. (after stating the facts as above).
In 1921 it was deemed expedient so to amend the laws providing for the selection of jurors that women otherwise qualified should be eligible to jury duty. The principal change made by chapter 273, Laws 1921, consisted in striking out those words or phrases which limited the persons eligible to jury duty to men, inserting in place of the word "men" or "male persons" the word "persons," and providing the terms upon which women summoned as jurors could obtain exemption. In addition to these amendments, no material change was made with the exception of that contained in section 10, quoted in the statement.
Before proceeding further with the decision, it is proper here to state exactly what was done in this case. The drawing of the jury proceeded regularly until six men and five women had been drawn one by one, when the clerk drew from the jury box the name of W. L. Wheeler, a male juror. Whereupon the state objected to the drawing of any more men on account of the provisions of section 10 of chapter 273, supra. The objection was overruled temporarily, and Wheeler was examined and took his place in the jury box. Another woman juror was drawn, but was excused for cause, and thereupon, and before any more men jurors were called, the court reconsidered its ruling in respect to Wheeler and excused him from service, to which ruling defendant excepted. Thereupon the clerk drew one by one from the box the names of several male jurors and by order of the court laid the same aside and continued to draw names from the box until the name of a woman juror was drawn, to all of which defendant excepted. The clerk announced that the names of all women jurors were exhausted, whereupon the court directed the sheriff in the presence of the court and counsel to draw from the regular jury list the names of ten women jurors to appear on March 13, 1922, at 9 o'clock a. m., to which procedure defendant objected on the ground that there yet remained in the box the names of male jurors.
When the court convened on March 13th, it announced, in answer to a question by defendant's counsel, that it would adhere to its ruling rejecting the names of male jurors, saying:
Counsel for defendant then stated that in view of this ruling the defense would waive any further challenges. The jury as selected was composed of six men and six women.
The result in this particular instance was that when the quota of six men had been taken and accepted, the remaining men on the panel were disqualified by the terms of the statute from serving on that particular jury. It was not an exemption, but a disqualification, one such as neither the state nor the defendant could waive, because it existed in favor of the infant witness. In the case at bar it appears that the provisions of section 116, Or. L., were substantially complied with. The state had challenged all male jurors on the ground of disqualification under the particular circumstances, and there was no necessity of repeating the challenge over again every time another name was called. In effect the statute challenged them, and unless the section in question is in violation of our Constitution, we can see no objection to the method pursued. The Constitution guarantees to a defendant the right of trial by an impartial jury, leaving the Legislature to provide the method of securing such a jury. So long as it is a jury of his peers, that is, of qualified citizens impartial between the state and himself, the defendant has no right to complain because a particular class of persons is included or excluded. The law exempts from jury duty several classes of people--ministers, school teachers, attorneys, civil officers, firemen, and many others--and excuses from such service jurors who have served for a period of four weeks or who for family reasons are unable to attend. Many of those in the exempt class would make ideal jurors, but reasons of public policy and convenience justify their exemption. The reason for requiring cases of the character of the present to be tried before a jury composed partly of women rests upon the highest considerations of public policy and humanity. Any one who has occupied the circuit bench and seen a poor, frightened girl, a stranger to a court-room, forced to detail the facts in regard to her injury or shame to a jury composed of strange men, has felt that the presence of a few of the mothers of children in the jury box would be more in accordance with humanity and justice. The intention of the Legislature in enacting section 10, supra, is plain; and even if to give it effect one should hold that it works an implied amendment of section 116, we should so hold rather than declare the law void for uncertainty. And although, as before stated, we are of the opinion that section 116 was substantially complied with, yet, even conceding that such was not the case and that the Legislature required a jury in this kind of cases to be composed of an equal number of men and women, but without prescribing the method by which equality should be attained, section 983, Or. L., provides an ample remedy for such omission. It reads as follows:
"When jurisdiction is, by the organic law of this state, or by this Code or any other statute, conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by this Code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code."
See, also, Aiken v. Aiken, 12 Or. 207, 6 P. 682; Williams v. Pacific Surety Co., 66 Or. 155, 127 P. 145, 131 P. 1021, 132 P. 959, 133 P. 1186.
The claim that the statute is in violation of the Constitution is not predicated upon the argument that it is unconstitutional to permit women to sit upon juries, a practice not now unusual in several of the states; but it is claimed that by allowing women summoned to serve upon the panel to decline such service, making it thereby optional with the person served to attend or not, the enactment of 1921 destroys the compulsory nature of jury duty and in some way not clearly explained by counsel deprives a party of a fair and impartial jury. While in the opinion of the writer it would have been better policy, if the statute had specified the grounds upon which a woman could be excused from jury duty, such as necessity of caring for her family or the like, we think there is no invasion of the constitutional rights of a...
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