Tynan v. United States

• Decision Date: 24 March 1924
• Docket Number: 4148.
• Citation: 297 F. 177
• Parties: TYNAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

297 F. 177

TYNAN v. UNITED STATES.

No. 4148.

United States Court of Appeals, Ninth Circuit.

March 24, 1924

Rehearing Denied May 5, 1924.

A H. Ziegler, of Ketchikan, Alaska, and R. W. Jennings, of San Francisco, Cal., for plaintiff in error.

A. G Shoup, U.S. Atty., of Juneau, Alaska.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN Circuit Judge.

This is a writ of error to review a judgment of conviction under the Alaska Bone Dry Law (39 Stat. 903). The assignments of error are directed against the jury as impaneled, against the information, and against testimony obtained through an unlawful search and seizure.

The jury trying the case was composed partly of women, and the plaintiff in error contends that he was entitled to a common-law jury, composed wholly of men. Section 9 of the Organic Act of the territory of Alaska (37 Stat. 514 (Comp St. Sec. 3536)), provides that the legislative power shall extend to all rightful subjects of legislation, not inconsistent with the Constitution and laws of the United States, with certain exceptions not material to our present inquiry. Chapter 68 of the Session Laws of Alaska 1923 provides that every person, without regard to sex, possessing certain qualifications, shall be competent to act as a grand or petit juror. To define the qualification of jurors and prescribe the mode of their selection is, no doubt, a rightful subject of legislation, and the act of 1923 is clearly valid, unless inconsistent with the Constitution and laws of the United States. Clinton v. Englebrecht, 13 Wall. 434, 444, 20 L.Ed. 659. The plaintiff in error contends, however, that the act is inconsistent with both the Constitution and laws of the United States for the following reasons:

Section 11 of chapter 4 of the act to define and punish crimes in the district of Alaska, and to provide a Code of Criminal Procedure for that district (30 Stat. 1286), provides that a person is not competent to act as a grand juror unless he is a male inhabitant of the district, and section 119 of chapter 14 provides that a trial juror shall possess the same qualifications. Section 3 of the Organic Act of the territory, supra (Comp. St. Sec. 3530), provides that all laws of the United States, theretofore passed, establishing the executive and judicial departments in Alaska, shall continue in full force and effect, until amended or repealed by act of Congress. It is now claimed that by reason of this latter provision, the territorial Legislature could not amend or repeal the provision relating to the qualifications of grand and petit jurors, found in the act defining crimes and providing a Code of Criminal Procedure. It seems quite apparent, however, that the latter act has nothing whatever to do with the establishment of the executive or judicial departments in the territory of Alaska, and therefore does not limit in any way the power of the Legislature to amend or repeal any of the provisions of the Criminal Code or of the Code of Criminal Procedure.

The contention that the act is inconsistent with the Constitution of the United States is based upon the claim that a common-law jury must necessarily consist of men only, and that women are incompetent. The competency of women to sit on grand and petit juries has been the subject of much consideration in recent years, and more especially since the adoption of the Nineteenth Amendment to the Constitution of the United States. So far as we are advised it has been uniformly held that to prescribe the qualifications of jurors and the mode of their selection, is a proper and rightful subject of legislation, and that acts similar to the Alaska act in question do not violate constitutional provisions similar in all material respects to the provision of the Sixth Amendment to the Constitution of the United States. People v. Barltz, 212 Mich. 580, 180 N.W. 423, 12 A.L.R. 520; State v. James, 96 N.J.Law, 132, 114 A. 553, 16 A.L.R. 1141; In re Mana, 178 Cal. 213, 172 P. 986, L.R.A. 1918E, 771; State v. Walker, 192 Iowa, 823, 185 N.W. 619; State v....