169 Misc. 69 | New York County Court, Kings County | 1938
The above-named defendant moves for a dismissal of the indictment presented against him by the September grand jury of Kings county and challenges the validity of its actions, upon the grounds that one of the members of said grand jury was a woman and, therefore, because of her sex, disqualified and ineligible to act as a member of that grand body. The sworn statement of Mrs. Julia Coblens, the grand juror in question, around whom is centered this casus belli, was filed April 22, 1938, in the office of the commissioner of jurors in Kings county and reads in part as follows: “ I do not claim to be exempt or disqualified from jury service.” Defendant bases his claim upon the provisions of subdivision 4 of section 267-cc of the Code of Criminal Procedure, as added by chapter 552 of the Laws of 1938, in effect April 7, 1938, and of section 720 of the Judiciary Law which, he contends, disqualify a woman for grand jury service.
I cannot agree with defendant’s contention which tends to frustrate the policy adopted by the 1937 and 1938 Legislatures of this State, by erroneously construing the word “ exempt ” used in the statute under consideration.
Any citizen of the United States residing in Kings county, male or female, and possessing the qualifications demanded by section 686 of the Judiciary Law, acquires the right to serve as a trial juror and likewise the corresponding obligation, a duty which the courts are empowered to enforce by the imposition of certain prescribed penalties upon delinquents in said duty. (Code Crim. Proc. § 229-Ic.) All such qualified citizens have the right to serve as trial jurors. But the Judiciary Law, by section 720 thereof, because of their occupation, position, profession or sex, makes a woman and those mentioned in said section eligible for exemption from trial jury service, an exemption which can, in fact, be attained if the person affected thereby claims it. Section 720 of the Judiciary Law does not disqualify but confers a privilege or favor. “ An exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted.” (Code Crim. Proc. § 379.) The individuals referred to in the statute are each entitled to exemption. They can accept it or reject it. To be exempt they must exercise the option of claiming it. “ Upon claiming exemption,” reads the statute, and not otherwise, and this claim for exemption must be evidenced by filing a certificate or affidavit therefor with the commissioner of jurors who is required to keep it as a public record. (Judiciary Law, §§ 721, 722.)
Now, the qualification mentioned in subdivision 4 of section 267-cc of the Code of Criminal Procedure, affecting grand jurors, is that they be " not exempt ” from serving as trial jurors and refers to the exemption contemplated by section 720 of the Judiciary Law. It
When determining the meaning of a statute, the legislative intent is a primary consideration in order to effectuate it to the fullest extent. The general purpose and spirit underlying the enactment of a statute are also material considerations in determining the meaning which shall be attached to its language. “ Consequences cannot alter statutes, but may help to fix their meaning. Statutes must be so construed, if possible, that absurdity and mischief may be avoided.” (Matter of Rouss, 221 N. Y. 81, 91.) What the intent of the Legislature was when it enacted subdivision 4 of section 267-cc of the Code of Criminal Procedure in question, in effect April 7, 1938, we may also gather from the different acts of the Legislature which are in pari materia. If we, therefore, examine briefly the legislative enactments effected within the past year relative to the subject of the eligibility of women to serve as grand jurors, the conclusion is impelling that the Legislature has definitely manifested its intent to enact progressive legislation designed to give to women the right to serve as jurors and grand jurors and that it was further the policy of the State that such legislation be given State-wide application.
The Legislature amended sections 502, 598 and 686 of the Judiciary Law, effective September 1, 1937, which, until said date, had conceded to men, only, the right to jury service. By this amendment, women, for the first time, became eligible as trial jurors. This law is now uniformly applicable to all women throughout the State. (Gerry v. Volger, 252 App. Div. 217.) Six months later, March 26, 1938, the Legislature again evidenced its intent to qualify the female sex for grand jury service, and on that date became effective the amendment to section 13 of the Civil Rights Law which prohibits the disqualification of any one from grand or petit jury service because of race, creed or color. By reason of this amendment, said section 13 of the Civil Rights Law now further
In view of this consistent and uniform legislation of State-wide applicability, it is difficult to find a plausible reason or motive why sections 267-aa, 267-bb and 267-cc of the Code of Criminal Procedure should be so construed as to indicate a legislative intent to discriminate against the women of one part of the State. If defendant’s claim be correct, the women of Kings county, Bronx county and New York county are ineligible for grand jury service and the Legislature has withheld from them a right which it accorded to all women in every other part of the State. It further produces the absurd result that the women residing in one part of the city of New York (Brooklyn, Manhattan and the Bronx) are deprived of a right conceded by the same legislative act to the women residing in another part of the same city (Queens and Richmond). “ It is hard to conceive of a quicker or more effective way to bring confusion and uncertainty into our jury system and thus destroy its chief purpose, than for the Legislature to adopt a plan whereby women would serve as jurors in one county and be denied that privilege in counties adjoining. It is our view that a result so manifestly unwise and so offensive to sound public policy was never intended by the Legislature.” (Gerry v. Volger, supra.)
Motion denied. Submit order.