State v. Hall, 44220

• Decision Date: 13 June 1966
• Docket Number: No. 44220,44220
• Citation: 187 So.2d 861
• Parties: STATE of Mississippi v. Mrs. Virginia HALL.
• Court: Mississippi Supreme Court

Page 861

187 So.2d 861

STATE of Mississippi v. Mrs. Virginia HALL.

No. 44220.

Supreme Court of Mississippi.

June 13, 1966.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellant.

Mitchell & Rogers, Tupelo, for appellee.

JONES, Justice.

The State appeals from an order of the Circuit Court of Lee County quashing an indictment for murder returned by the grand jury of that county against the appellee. The sole ground of the motion was that under Mississippi Code Annotated section 1762 (1956) women were excluded from jury service and such denied to appellee the equal protection of the law as guaranteed by the Fourteenth Amendment of the United States Constitution. We do not agree, and the case is reversed and remanded.

Appellee bases her assertion upon the case of White v. Crook, 251 F.Supp. 401 (1966), decided February 7, by a United States District Court of Alabama. With deference, we do not consider that case binding here.

We begin the discussion of this matter with the statement, respectfully, that we yet are of the firm conviction:

1st. The Constitution is a living document for the operation and perpetuation of our government.

2nd. It should not be changed, expanded or extended beyond its settled intent and meaning by any court to meet daily changes in the mores, manners, habits, or thinking of the people. The power to alter is the power to erase. Such changes should be made by those authorized so to do by the instrument itself-the people. When a portion of the Constitution has been construed, considered and acted upon for decades in one way by all branches of government, both federal and state, such meaning should, in the interest of all concerned, not be changed except by amendment.

3rd. The power to prescribe the qualifications for jurors is in the legislature, and it has the power to make reasonable classifications.

4th. No citizen has the absolute right to serve upon a jury. That is a service demanded by the government. If he did have such a right, what would happen when one was peremptorily challenged but insisted on his right to serve? Of course, the peremptory challenge has been too long embodied in our system to now disallow-but it has been there no longer than the right of the legislative branch to say who shall be upon the list.

5th. The legislature has the right to exclude women so they may continue their service as mothers, wives, and homemakers, and also to protect them (in some areas, they are still upon a pedestal) from the filth, obscenity, and noxious atmosphere that so often pervades a courtroom during a jury trial.

The Fourteenth Amendment was adopted in 1868 as an aftermath of the Civil War.

In 1879, the members of the Supreme Court of the United States were men living among and familiar with the hatreds and other emotions aroused by such conflict and prevalent at the time of the adoption of the Fourteenth Amendment and of the general feeling that prompted the adoption of the Fourteenth Amendment.

The Court recorded in Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879), for those interested, from a historical standpoint, the surrounding circumstances and reasons for its adoption, and, for those animated by legalistic purposes it recorded, in addition, the intent and meaning of said Amendment, together with its proper construction.

'This is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emanicipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy. The true spirit and meaning of the amendments, as we said in the Slaughter-House Cases (16 Wall. 36 (21 L.Ed. 394)), cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish. At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual. It was well known that in some States laws making such discriminations then existed, and others might well be expected. The colored race, as a race, was abject and ignorant, and in that condition was unfitted to command the respect of those who had superior intelligence. Their training had left them mere children, and as such they needed the protection which a wise government extends to those who are unable to protect themselves. They especially needed protection against unfriendly action in the States where they were resident. It was in view of these considerations the Fourteenth Amendment was framed and adopted. It was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation. To quote the language used by us in the Slaughter-House Cases, 'No one can fail to be impressed with the one pervading purpose found in all the amendments, lying at the foundation of each, and without which none of them would have been suggested,-we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.' So again: 'The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied, and by it (the Fourteenth Amendment) such laws were forbidden. If, however, the States did not conform their laws to its requirements, then, by the fifth section of the article of amendment, Congress was authorized to enforce it by suitable legislation.' And it was added, 'We doubt very much whether any action of a State, not directed by way of discrimination against the negroes, as a class, will ever be held to come within the purview of this provision." (100 U.S. at 306-307, 25 L.Ed. at 665.)

'We do not say that within the limits from which it is not excluded by the amendment a State may not prescribe the qualifications of its jurors, and in so doing make discriminations. It may confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. We do not believe the Fourteenth Amendment was ever intended to prohibit this. Looking at its history, it is clear it had no such purpose. Its aim was against discrimination because of race or color. * * *' (100 U.S. at 310, 25 L.Ed. at 666.)

While this last quoted paragraph was may years later referred to as dictum, still it shows now the right to vote was considered and such thinking prevailed universally throughout the nation for fifty years or more before the first efforts were made to change, insofar as women were concerned, and the subsequent changes were all made by the legislatures.

Prior to the Strauder case, in Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L.Ed. 627 (1875), and some few years after the adoption of the Fourteenth Amendment, Virginia L. Minor, et al., sued Reese Happersett, a voter registrar in Missouri, for failure to register plaintiff. The Missouri statute said 'male' citizens were the only ones entitled to vote. In discussing the constitutional amendments, it was there said:

'If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the constitution and laws of Missouri confining it to men are in violation of the Constitution of the United States, as amended, and consequently void. The direct question is, therefore, presented whether all citizens are necessarily voters.

'The Constitution does not define the privileges and immunities of citizens. For that definition we must look elsewhere. In this case we need not determine what they are, but only whether suffrage is necessarily one of them.

'It certainly is nowhere made so in express terms. The United States has no voters in the States of its own creation.' * * * (88 U.S. at 170, 22 L.Ed. at 629.)

'The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens entitled to suffrage under the constitution and laws of the States, but it operates for this purpose, if at all, through the States and the State laws, and not directly upon the citizen.

'It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be assumed.' * * * (88 U.S. at 171-172, 22 L.Ed. at 629.)

After discussing the laws of the several states as to suffrage, the Court then said:

'In this condition of the law in respect to suffrage in the...