State v. Kelley

• Decision Date: 04 October 1924
• Citation: State v. Kelley, 39 Idaho 668, 229 P. 659 (Idaho 1924)
• Parties: STATE, Respondent, v. ROBERT E. KELLEY, Appellant
• Court: Idaho Supreme Court

229 P. 659

39 Idaho 668

STATE, Respondent, v. ROBERT E. KELLEY, Appellant

Supreme Court of Idaho

October 4, 1924

CONSTITUTIONAL LAW-JURORS-QUALIFICATIONS-COMPETENCY-ELECTORS-CITIZENS.

Under the statutes of this state a female citizen of the United States, who is an elector of the county, is not legally competent to act as a juror.

APPEAL from the District Court of the Seventh Judicial District, for Valley County. Hon. B. S. Varian, Judge.

Judgment of conviction of the unlawful possession of intoxicating liquor. Reversed and remanded.

Reversed and remanded.

Delana & Delana, for Appellant.

A jury is a body of men. (C. S., sec. 6512.) A grand jury is a body of men. (C. S., sec. 6514.) A trial jury is a body of men. (C. S., sec. 6515.) A trial jury consists of twelve men. (C S., sec. 6516.) A jury of inquest is a body of men. (C. S sec. 6517.) A person is competent to act as a juror if he be in possession of his natural faculties. (C. S., sec. 6518.)

The court may, by an order entered on its minutes, direct the sheriff of the county to summon so many good and lawful men of his county to serve as jurors. (C. S., sec. 6538.)

Women are not competent to sit as jurors. (Knollin v. Jones, 7 Idaho 466, 63 P. 638; People v. Lensen, 34 Cal.App. 336, 167 P. 406; Harper v. State (Tex.), 234 S.W. 909; In re Grilli, 110 Misc. 45, 179 N.Y.S. 795; 96 N.J.L. 132; State v. James, 114 A. 553; Harland v. Territory, 3 Wash. Ter. 131, 13 P. 453; People v. Krause, 196 Ill.App. 140; McKinney v. State, 3 Wyo. 719, 30 P. 293, 16 L. R. A. 710.)

A. H. Conner, Atty. Genl., and Jas. L. Boone, Assistant, for Respondent.

Women are eligible to serve as jurors in criminal cases in this state. (Art. 1, sec. 7, art. 6, sec. 2, Const. of Idaho; C. S., secs. 6518, 6519; Parus v. District Court, 42 Nev. 229, 4 A. L. R. 140, 174 P. 706; People v. Barltz, 212 Mich. 580, 12 A. L. R. 520, 180 N.W. 423; Commonwealth v. Maxwell, 271 Pa. 378, 16 A. L. R. 1134, 114 A. 825; State v. Walker, 192 Iowa 823, 185 N.W. 619.)

Statutes passed in general terms apply to new cases that arise and to new subjects that are created from time to time and which come within their general scope and policy. (25 R. C. L. 778; Commonwealth v. Maxwell, supra; People v. Barltz, supra.)

Words used in the Compiled Statutes in the masculine include the feminine. (C. S., sec. 9456.) The word "men" includes women. (People v. Barltz, supra.) Where the word "men" is used in sections 6512 and 6515, C. S., it is equivalent to the use of the word "jurors."

WM. E. LEE, J. McCarthy, C. J., and Dunn and William A. Lee, JJ., concur. Budge, J., dissents.

OPINION

WM. E. LEE, J.

Robert Kelley was tried to a jury of twelve women on an information charging him with the unlawful possession of intoxicating liquor and was convicted. He appeals from the judgment, and has properly brought here for our determination the question whether women are eligible for jury duty.

The jury system is of ancient origin. It did not emerge fully clad, in all of its perfections, from the brain of any person, or as the work of any particular council or parliament. It was not the only system in vogue in ancient times for the determination of the issues that then arose, but it is the one system that has come down to us for the trial of issues of fact. The right to trial by jury is a heritage from the law of England; and it has been frequently said by the courts of this country that our constitutional guaranty of the right to trial by jury means a trial by a jury as it was constituted at common law. There are a number of essentials of the right to trial by jury, and we are not directly concerned with the question whether the competency of jurors is within the guaranty of the constitution or whether competency is a subject for legislative action. It is not disputed, however, that juries at common law, with the single important exception noted by Blackstone "upon the writ de ventre inspiciendo," were composed entirely of men.

Our jury statutes were enacted prior to the adoption of the constitution of the state. It has been held in this state that "The guaranty of the right to trial by jury simply secures that right as it existed at the date of the adoption of the constitution, . . . ." (Christensen v. Hollingsworth, 6 Idaho 87, 96 Am. St. 256, 53 P. 211; Shields v. Johnson, 10 Idaho 476, 79 P. 391.) It was said in State v. Jutila, 34 Idaho 595, 202 P. 566, that:

"This right of trial by jury means in general the right as it existed in England, at the time of the separation of the American colonies, subject to such exceptions as the legislature may have expressly made, in the exercise of the power conferred upon it by the constitution."

In these decisions, however, this court was not considering the competency of jurors, and we do not decide this case upon the authority of those decisions. Our present jury statutes were enacted in 1881, and the sections bearing upon this question for determination are: "A jury is defined as a body of men . . . . selected from the citizens . . . ." (C. S., sec. 6512); "A grand jury is a body of men . . . . returned from citizens . . . ." (C. S., sec. 6514); "A trial jury is a body of men returned from the citizens . . . ." (C. S., sec., 6515); "A trial jury consists of 12 men" (C. S., sec. 6516); "A jury of inquest is a body of men summoned from the citizens" (C. S., sec. 6517); "A person is competent to act as a juror if he be: 1. A citizen of the United States and an elector of the county . . . ." (C. S., sec. 6518); "A person is not competent to act as a juror: who . . . ." (C. S., sec. 6519); "A person is exempt from liability to act as a juror if he be . . . ." (naming twelve grounds for exemption) (C. S. sec. 6520).

There can be no doubt that C. S., secs. 6512 to 6517, supra, limit jury duty to men, and that C. S., sec. 6518, adds certain additional qualifications, the possession of which was required for jury duty. At the time of the adoption of the constitution, a jury was a body of men, males, selected from the citizens of a particular district, who were electors. And it would seem that there can be no doubt that women were not eligible for jury duty when the constitution was adopted, jury duty being confined to men and to electors.

The state contends, however, that the adoption of the suffrage amendment to the constitution (art. 6, sec. 2), making women electors, and C. S., sec. 9456, which, among other things, provides that "Words used in the masculine gender, include the feminine . . . ." operated to make women competent for jury duty; and that by reason of the amendment and the effect upon the jury statutes of C. S., sec. 9456, the word "men," in the jury statutes, is made to read "jurors," or "persons"; so that, for instance, C. S., sec. 6512, which reads: "A jury is a body of men . . . . ," means that a jury is a body of persons. What is the effect, therefore, on the jury statutes, of the adoption of the suffrage amendment to our constitution? The title of art. 6 of the constitution, according to the enrolled copy in the office of the Secretary of State, is "Suffrage and Elections." Section 2 originally read: "Except as in this article otherwise provided, every male citizen . . . . who has actually resided in . . . . where he offers to vote . . . . is a qualified elector: . . . ." As amended in 1896, the section now reads: "Except as in this article otherwise provided, every male or female citizen . . . . who has actually resided in . . . . where he or she offers to vote . . . . is a qualified elector; . . . ." In adopting this amendment the people intended to and did amend their constitution to give female citizens the same right to vote as that possessed, under the constitution, by male citizens. The people, in adopting that amendment, were not concerned with jury duty, but with suffrage. The entire effect of the adoption of the amendment was the enfranchisement of women; it imposed no duty upon them.

Citizenship has always been a qualification for jury service, but every person possessing the qualifications of an elector has not always been included among those eligible for jury duty. The right to vote has no direct relation to jury duty. They are separate subjects. (State v. Walker, 192 Iowa 823, 185 N.W. 619; In re Grilli, 110 Misc. 45, 179 N.Y.S. 795.) They are not treated together in either the constitution or statutes. One is a right guaranteed by the constitution, the other is a duty. While the constitution guarantees the right to trial by jury, it does not guarantee to any person the "right" to serve on a jury. A single proposed amendment to the constitution, relating both to suffrage and to jury duty, or the right to trial by jury, could not be validly submitted to the people. (McBee v. Brady, 15 Idaho 761, 100 P. 97.) The suffrage amendment, guaranteeing to female citizens the right to vote, neither relates to nor directly affects the qualifications or competency of persons for jury duty.

The state contends that statutes, such as those pertaining to juries, couched in general terms, apply to new cases that arise and to new subjects that are created from time to time and which come within their general scope and policy. This is a general principle of statutory construction. However, no "new case" has arisen and no "new subject" has been created. The jury statutes have not been amended since they were enacted in 1881. The extension of the right of suffrage did not come within the general scope and policy of the jury statutes, for the suffrage amendment dealt with another, a distinct and a different subject. The jury statutes restrict jury duty to men--males--who are citizens and electors; the suffrage amendment increased the number of...