State v. Rosenberg

• Decision Date: 23 February 1923
• Docket Number: No. 23053.,23053.
• Citation: 155 Minn. 37,192 N.W. 194
• Parties: STATE v. ROSENBERG.
• Court: Minnesota Supreme Court

155 Minn. 37

192 N.W. 194

STATE

v.ROSENBERG.

No. 23053.

Supreme Court of Minnesota.

Feb. 23, 1923.

Appeal from District Court, Hennepin County; W. W. Bardwell, Judge.

Asher Rosenberg was convicted of the crime of receiving stolen goods, and he appeals. Affirmed.

Syllabus by the Court

Chapter 365, Laws 1921, which defines a petit jury as a body of twelve men or women or both, is constitutional and valid.

On trial of a defendant charged with feloniously receiving stolen goods, it is proper to receive evidence that defendant received stolen goods from the same party on other occasions, either to show a system of operation, or to show guilty knowledge of the accused.

A charge of ownership in an indictment is sustained by proof that the person charged as owner was a lawful bailee.

A person who deloniously receives stolen goods is not an accomplice with the thief who steals them. Donald G. Hughes, E. S. Cary, and Simon Meshbesher, all of Minneapolis, for appellant.

C. L. Hilton, Atty. Gen., Jas. E. Markham, Asst. Atty. Gen., and Floyd B. Olson, Co. Atty., of Minneapolis, for the State.

HALLAM, J.

Defendant was convicted of the crime of receiving stolen goods from two men, Wall and Willard. He appeals from the judgment and sentence.

[1] 1. The jury that convicted him was composed of both women and men. Defendant contends that women are not eligible for jury service under the Constitution of this state, and that, therefore, the jury was not a lawful jury. G. S. 1913, § 7960, defined a petit jury as a body of ‘twelve men.’ Chapter 365, Laws 1921, amends this so as to read, ‘twelve men or women or both.’ The contention is that this statute, in so far as it qualifies women as petit jurors, is violative of section 4, article 1, of the state Constitution, which provides that ‘the right of trial by jury shall remain inviolate.’ Defendant contends that this implies a requirement that the jury be composed entirely of men.

It has been held in this state, as elsewhere, that the constitutional guaranty of ‘trial by jury’ carries with it certain elements by implication. Trial by jury means trial by jury as that right was understood at common law. It harks back to the provision of Magna Carta that ‘no freeman shall be hurt, in either his person or property unless by lawful judgment of his peers,’ and ‘trial by jury’ means a trial by jurors who are of like condition and equality with the accused in the state. 16 R. C. L. 183; State v. Hamey, 168 Mo. 167, 67 S. W. 620,57 L. R. A. 846. Other essential elements implied are number, impartiality and unanimity. Unless otherwise provided, ‘the jury must consist of twelve; they must be impartial and indifferent between the parties; and their verdict must be unanimous.’ Lommen v. Minneapolis Gas Light Co., 65 Minn. 196, 209, 68 N. W. 53, 55 (33 L. R. A. 437, 60 Am. St. Rep. 450). But no particular qualification of jurors has ever been considered as of the essence of trial by jury. At common law, juries were made up of freemen of the same class as the accused and early statutes which have become part of our common law required they should be property holders and freeholders. 3 Blackstone, 362. Trial by jury is probably guaranteed by the Constitution of every state in the Union, and yet, so far as we know, no state adheres to the qualifications that prevailed under the English law, common or statute. The argument of defendant would require us to exact these requirements as part of our Constitution. This would be unthinkable. The fact is such requirements as that a juror shall be a voter, People v. Considine, 105 Mich. 149, 63 N. W. 196;State v. Jackson, 27 Kan. 581, 41 Am. Rep. 424;Territory v. Evans, 2 Idaho (Hasb.) 651, 23 Pac. 232,7 L. R. A. 646, or possessed of certain educational qualifications, Sutton v. Fox, 55 Wis. 531, 13 N. W. 477,42 Am. Rep. 744;Lyles v. State, 41 Tex. 172, 19 Am. Rep. 38, or of reasonable age, residence, moral or physical qualifications, 16 R. C. L. 225–228, are held to be consistent with the constitutional requirement of ‘trial by jury.’

The Nineteenth Amendment provides that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.’ Since its adoption many states have passed statutes permitting or requiring of women jury service.

Our statute prior to 1921 provided that every qualified voter should be liable to jury service. G. S. 1913, §§ 7962, 9099.

Some decisions hold that when state statutes provide that jurors shall be selected from the body of electors, the effect of the Nineteenth Amendment is to enlarge the eligible list ipso facto so as to include women. State v. Walker, 192 Iowa, 823, 185 N. W. 619;Commonwealth v. Maxwell, 271 Pa. 378, 114 Atl. 825, 16 A. L. R. 1134. This was the view of the United States Supreme Court of the effect of the Fifteenth Amendment on the eligibility of negroes to jury service. Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567. And the same principle has been applied in some states, where state constitutions have enlarged the suffrage, Parus v. District Court, 42 Nev. 229, 174 Pac. 706, 4 A. L. R. 140, even though the state Constitution provided for trial by a jury of ‘twelve men,’ People v. Barltz, 212 Mich. 580, 180 N. W. 423, 12 A. L. R. 520, followed in People v. Merhige, 219 Mich. 95, 188 N. W. 454.

Other decisions hold that the Nineteenth Amendment does not operate, ipso facto, to render women eligible to jury service, but that, since electors, have in the past, often by express constitutional or statutory provision, and, generally, by common understanding, been regarded as competent for jury service, the extension of the suffrage to women authorizes the Legislature to make a like enlargement of the class of citizens competent for jury service as well, In re Opinion of the Justices, 237 Mass. 591, 130 N. E. 685;State v. James, 96 N. J. Law, 132, 114 Atl. 553, 16 A. L. R. 1141; see, also, In re Mana, 178 Cal. 213, 172 Pac. 986, L. R. A. 1918E, 771; though in State v. Mittle (S. C.) 113 S. E. 335, it was held that under a constitutional provision defining a jury as made up of ‘twelve men,’ the Legislature could not make women eligible.

So far as we can ascertain, no court has held, since the enactment of the Nineteenth Amendment, that a statute making women eligible as jurors violates a constitutional provision which simply...