State v. Emery
| Decision Date | 08 November 1944 |
| Docket Number | 146. |
| Citation | 31 S.E.2d 858,224 N.C. 581 |
| Parties | STATE v. EMERY et al. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
Criminal prosecution tried upon indictment charging the defendants and another, in six counts, with violations of the prohibition laws.
Upon the trial, after the regular panel of jurors and most of the male bystanders had been exhausted, the sheriff called from among the bystanders two women of good moral character freeholders and residents of the county, and they were accepted by the solicitor as satisfactory jurors. The defendants moved the court to excuse both women from jury service for the reason that they were not qualified, because of their sex, to serve as petit jurors. Overruled exceptions. Peremptory challenges were still available to the defendants, but were not used to stand the women aside, as the defendants did not wish unnecessarily to exhaust their challenges. Practically all remaining bystanders, not previously called, were women.
There was a general verdict of guilty as to each of the defendants, which they moved to set aside principally upon the ground of jury defect. Overruled; exceptions.
From the judgments pronounced, the defendants appeal, assigning errors.
Harry McMullan, Atty. Gen., and Geo. B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.
J. E. Shipman, of Hendersonville, and Phillip C. Cocke, of Asheville, for defendants.
The questions here posed are (1) whether a jury of ten men and two women suffices as a jury of 'good and lawful men' within the meaning of Art. I, Sec. 13, of the Constitution; and (2) whether trial by such jury complies with 'the law of the land' and accords with 'the ancient mode of trial by jury' vouchsafed in Art. I, Secs. 17 and 19, of the Constitution. While these are questions of first impression, the construction heretofore placed on the subject sections of the Constitution would seem to point to negative answers.
The pertinent clauses follow:
'No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court.' Declaration of Rights, Art. I, Sec. 13.
'No person ought to be * * * deprived of his * * * liberty or property, but by the law of the land.' Declaration of Rights, Art. I, Sec. 17.
'In all controversies at law respecting property, the ancient mode of trial by jury * * * ought to remain sacred and inviolable.' Declaration of Rights, Art. I, Sec. 19.
The will of the people as expressed in the Constitution is the supreme law of the land. Warrenton v. Warren County, 215 N.C. 342, 2 S.E.2d 463. In searching for this will or intent all cognate provisions are to be brought into view in their entirety and so interpreted as to effectuate the manifest purposes of the instrument. Elliott v. State Board of Equalization, 203 N.C. 749, 166 S.E. 918; Reade v. Durham, 173 N.C. 668, 92 S.E. 712. The best way to ascertain the meaning of a word or sentence in the Constitution is to read it contextually and to compare it with other words and sentences with which it stands connected. Noscitur a sociis is a rule of construction applicable to all written instruments. 11 Am.Jur. 663; 25 R.C.L. 995.
In numerous decisions, it has been said that the word 'jury,' as here used, is to be given the signification which it had when the Constitution was adopted, i. e., a body of twelve men in a court of justice duly selected and empaneled in the case to be tried. State v. Rogers, 162 N.C. 656, 78 S.E. 293, 46 L.R.A.,N.S., 38, Ann.Cas. 1914A, 867; State v. Berry, 190 N.C. 363, 130 S.E. 12; State v. Scruggs, 115 N.C. 805, 20 S.E. 720; State v. Stewart, 89 N.C. 563; People v. Powell, 87 Cal. 348, 25 P. 481, 11 L.R.A. 72; 31 Am.Jur. 557; 11 Am.Jur. 684. The jury is to be composed of twelve 'good (or free) and lawful men'--liberi et legales homines. State v. Dalton, 206 N.C. 507, 174 S.E. 422.
From ancient times or from the earliest period in the history of the common law, grand and petit juries have consisted exclusively of men. 3 Bl.Com. 352. Women were excluded propter defectum sexus. 3 Bl.Com. 362; 4 Id. 395. Blackstone says: 'Under the word 'homo,' also, though a name common to both sexes, the female is, however, excluded propter defectum sexus (because not of the male sex),' except in cases of writs de ventre inspiciendo. 3 Blk.Com. 362, 35 C.J. 245; People v. Lensen, 34 Cal.App. 336, 167 P. 406; State v. James, 96 N.J.Law 132, 114 A. 553, 16 A.L.R. 1141; State v. Mittle, 120 S.C. 526, 113 S.E. 335. Such was the general understanding and meaning of the word 'jury' at the time of the adoption of the Constitution in 1868. State v. Dalton, supra; State v. Rogers, supra. So much so that in Art. I, Sec. 13, it is spelled out as 'a jury of good and lawful men.' True, the number is not mentioned, yet it would hardly be doubted that what the framers had in mind was 'a jury of twelve good and lawful men'. And the cases so hold. 31 Am.Jur. 625.
At common law a person under 21 years of age was not competent to serve as a juror, and so we have held that the presence of a minor on a grand jury renders its returns quashable, and this without any statute by our Assembly prescribing the age for jurors. State v. Griffice, 74 N.C. 316. Likewise, under the common law an alien was not qualified to serve as a juror, and so we have held, quite recently, that a jury composed of eleven citizens and one alien was not a lawful jury, and this without any statute making alienage a disqualification for jury service in this State. Hinton v. Hinton, 196 N.C. 341, 145 S.E. 615.
It follows, therefore, that until the common-law disqualification of sex is removed from our law, women are not required to assume the obligation of jury service. They were ineligible for such service at the time of the adoption of the Constitution in 1868, and the same law which then obtained still subsists. 31 Am.Jur. 594.
'It is elementary that a 'jury,' as understood at common law and as used in our Constitutions, federal and state, signifies 12 men duly impaneled in the case to be tried.' State v. Rogers, supra [162 N.C. 656, 78 S.E. 294]; Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873; Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263.
It is a cardinal principle, in the interpretation of constitutions that they should receive a consistent and uniform construction, so as not to be given one meaning at one time and another meaning at another time, even though circumstances may have so changed as to render a different construction desirable. The will of the people as expressed in the organic law is subject to change only in the manner prescribed by them. State ex rel. Attorney General v. Knight, 169 N.C. 333, 85 S.E. 418, L.R.A.1915F, 898, Ann.Cas.1917D, 517, 11 Am.Jur. 659.
In support of a different view, it is suggested that by statute, even prior to the adoption of the Constitution, the original jury list was to be selected from the names of all such 'persons' as have paid the taxes assessed against them for the preceding year and are of good moral character and of sufficient intelligence. G.S. § 9-1. And further that in the construction of statutes, 'every word importing the masculine gender only shall extend and be applied to females as well as to males, unless the context clearly shows to the contrary.' G.S. § 12-3.
Without conceding the present pertinency of these statutory provisions, it would seem that the contextual use of the words 'good and lawful men' and 'the ancient mode of trial by jury' in the above sections of the Constitution clearly shows a contrary intent. In re Opinion of Justices, 237 Mass. 591, 130 N.E. 685. In at least three States, California, Massachusetts and Texas, similar arguments have been considered and rejected. People v. Lensen, supra; Com. v. Welosky, 276 Mass. 398, 177 N.E. 656; Glover v. Cobb, Tex.Civ.App., 123 S.W.2d 794.
To say that the law-making body in 1855, thirteen years prior to the adoption of the Constitution, intended to impose, and did impose, upon women the obligation of jury duty, which the framers of the Constitution must have had in mind, and which we are just now finding out--89 years later--may reveal some ingenuity or enterprise, but the idea could hardly be expected to prevail. In addition to the lateness of the discovery, which alone invites scrutiny, it seems to involve a novel use of the rules of construction.
Every statute is to be considered in the light of the Constitution and with a view to its intent. Belk Bros. Co. v. Maxwell, 215 N.C. 10, 200 S.E. 915, 122 A.L.R. 687; State v. Humphries, 210 N.C. 406, 186 S.E. 473. Uphoff v. Industrial Board, 271 Ill. 312, 111 N.E. 128, 130, L.R.A.1916E, 329, Ann.Cas.1917D, 1. To like effect is the opinion in Kearney v. Vann, 154 N.C. 311, 70 S.E. 747, Ann.Cas.1912A, 1189. All agree that a statute is to be interpreted as it was intended to be understood at the time of its enactment, and usually with reference to the common law then existent. 50 Am.Jur. 224.
The pertinent considerations were before the Court in State v Mitchell, 202 N.C. 439, 163 S.E. 581, 583, where Adams, J., delivering the opinion, said: ...
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