*1
Walter Jr.
STATE.
Aug. 16, 1966.
328 *4 Gen., Flowers, Atty.
Richmond M. Clark, Atty. Gen., David Asst. W. for State. Hill, appellant. Opelika,
Walker &
PER
rape
up-
CURIAM.
assault with intent to
will not be
supra.
held, citing Curry,
(a)
conference this court divided over
admissibility
given by
5)
(or
a confession
That a mere
a mere sus-
scintilla
custody
picion)
enough
support
the defendant while in
in a back
is not
a verdict
station,
(b)
case, citing
room at
guilt
the trial court’s
in a criminal
Ex
parte Grimmett,
refusal of a continuance because the Ala-
228 Ala.
So.
bama statutes exclude
women from
all
6)
judge
refusing
That
the trial
еrred
serving
jurors.
following
charges:
tendered written
We certified to
charges
(a) “Charge
The Court
#8.
questions
given
Alabama the
were
if,
evidence in
from the
appear
answers which
in the
statement
case,
beyond you this
not satisfied
along
pertinent
the case
with the
facts of
had
reasonable doubt that the defendant
the case.
***
forcibly
intention
to ravish
upon her or
put
his hands
at
time
received
confession here
her,
you
that he
if
are satisfied
touched
not within
Escobedo v.
the influencе of
her,
upon
put
did
his hands
her or touched
*5
Illinois,
12 L.
378 U.S.
84 S.Ct.
persuade
simply trying to
but that he was
require
on
Ed.2d
so as to
a reversal
him,
her to have sexual intercourse with
appellate
this
v. New
review.
Johnson
you
the
are satisfied
and if from
evidence
Jersey,
16 L.Ed.
more, you can-
nothing
the defendant did
2d 882.
intent
not
him of an assault with
convict
ap-
which the
Additional claims of error
State, 185
citing
to
Brooks
ravish.” —
pellant
brief are:
covers
his
C).
(Charge
Ala.
Charges result). adequately and 9 were covered by charge. the oral Regardless personal views on subject my serving juries, of women it is revisory powers We have no legal firm conviction the status is settled severity sentence, long to the so response statutory the term thereof is within limits. question the certified from this court. *7 1940, 14, years (two See Code T. 38§ any ques- opinion Supreme of the Court minimum, twenty years imprison maximum conclusive, controlling tion is so certified ment). Our statute enables us to review 88, binding and on this court. Section only. 1940, judgments 15, Code T. 367 § 13, Alabama, 1940; Mars v. Title Code of (appeal), (writ error). 383 of § 314; State, Ala.App. 569, Lash- 23 129 So. State, 86, ley Ala.App. 28 180 So. testify. The defendant The did not al., et State ex rel. Mantell v. Baumhauer judge’s charge trial originally oral stated 27, Ala.App. 12 31 So.2d 332. inter alia: “ * * you are to determine whether CATES, Judge part). in (concurring telling or not the defendant was the truth when he on the stand.” testified questions Along the certified to the with Supreme opinion appended an Court was having lapsus linguae On this called to his Cates, by J., in neither of the other attention, pointed court then out that the Appeals judges the concurred. of Court of the defendant not and had taken the stand prior following abridgement of that withdrew Under Code The statement. 1940, 15, 305, opinion. separate opinion of not earlier T. this was error. Cates, 346, partial J., State, Ala.App. by refers Pierson v. 100 So. concurrence filed 39 2d 47. thereto.
333 Madison, 265, Schowgurow it 213 made clear in that the State v. 240 Md. Schowgurow, case, 880, Madison, decision that reasons of unlike in A.2d Supreme public policy believing in in the administration of belonged a faith a exceptiоn stated, justice therein with the Being. only noted, apply prospectively. is to he had no that argued therefore The State Nevertheless, recognize there that we being and (cid:127)standing complain of indicted interference, time will be for the some by juries believers. tried of expeditious disposition of being, with the additional, pending criminal cases. This State, reviewing After Walter [Walter temporary, upon if and our courts burden 607], 268, 231, A.L.R. Ind. 195 N.E. 98 208 because, the State results under de- Co., 328 Pacific supra, Thiel v. Southern Torcaso, Supreme cision of Court 1181, 984, Bal- L.Ed. S.Ct. U.S. principles process due fundamental of States, 67 S.Ct. lard v. United equal protection re- and the of the laws State, 110 Allen v. L.Ed. quire persons pending that all accused Maryland Ga.App. 137 S.E.2d right criminal cases have the to ask shall Appeals concluded: 'Court of they by juries be and tried indicted laws, protection as well “Equal Supreme selected in the manner which Under process, involved. necessary. Court’s as due decision has made We a contention, Schowgurow, pay price while for the federal nature our .state’s a new trial to a Buddhist, government, but, it, held entitled would without we by tried because was indicted a governmental not be Under our nation. selected, unconstitutionally Madi system, juries the decisions of faith, Apostolic (cid:127)son, when, controlling member of the must even by a object here, his indictment (cid:127)could not long- the decision makes invalid a uncon grand in the same provision Maryland selected established only difference Constitution, stitutional manner. previously held this valid men, respect, is in this between the two Court.” Dis religious beliefs. of their the nature male, Philpot, though had consider opinions about crimination because n standing complain of the absence examples of religion the classic is one of array brought and to women on the to him equal protection laws. (cid:127)denial of the County. rolls Lee Maryland, 340 U.S. v. State Niemotko 272-273, L.Ed. 71 S.Ct. I am with rationale accord ; 102 Tex.Cr.R. (1951) 11, page headnote White Juarez If (1925). 297, 303-304, Walker, 277 S.W. Crook, supra, Linkletter v. contention uphold we were State’s L.Ed.2d U.S. pend case, effect would be States, this ex rel. United Tehan v. *8 be persons who ing against 406, 459, 15 Shott, indictments L. 382 U.S. be Being Supreme could 453, “prospective in a dictating lieved apt as Ed.2d successfully challenged, indictments while overruling.” be that not have .against who do others First, any over I is fail to see that there would, in There be dismissed. lief would expressly any prior ruling of court decision (cid:127)effect, discrimina be an unconstitutional confining approving in fair terms or against as of nonbelievers (cid:127)tion in favor predecessors to by the or its selection statute believers. persons.” All can be shown that “male in United States Su points “The that a Alabama or State fact either that preme is dicta (cid:127)decision in Court decisions such its in this case would favor Vir materially in illustratively used Strauder v. West reduce the of indict- number ginia, infra. rebrought. ments which must be We 334
Second, prospective overruling system', em- when allowed Of to continue in ployed in criminal Hoyt Florida, law is seldom found supra, v. State of the follow- self-executing right where a ing constitutional portentous comment is incisive and g., People is possibly breached. E. v. Griffin another constitutional assault: Illinois, 12, State of S.Ct. 76 "However foregoing sound the conclu- 585, 891; Eskridge Washington L.Ed. 100 v. theoretically, sions practical be as a Board, 214, State Prison U.S. S.Ct. 357 78 matter, exemption equals automatic auto- 1061, 2 L.Ed.2d Gideon Wain- v. matic If a exclusion. state has a stat- wright, 335, 792, U.S. 83 L.Ed. 372 S.Ct. 9 requires ute that a woman volun- 2d 799. if teer she jury, wishes to serve on 572, Johnson, Seе v. 43 206 State if even purport statute does not to> N.J. 368, 737, Lopez, A.2d In 62 42 re Cal.2d exclude fairly women even if is it 380, Cal.Rptr. it 398 P.2d wherein administered, the result probably will be Ohio, pointed 367 Mapp [Mapp few, out any, if women serve on will U.S. 81 S.Ct. 6 L.Ed.2d Only that state. 1081] a small frac- evidentiary both Escobedo cases are eligible tion of those ever volunteer.”— rulings using Notes, re- of exclusion to rule Courts —Women Jurors —Auto- prosecution. strain Exemption, matic 36 Tulane L.Rev. (1962). Certainly, Florida, Hoyt v. State plumbline permissible The for the latitude U.S. S.Ct. 7 L.Ed.2d exemption up by set was Mr. revelation what White Justice Georgia, Holmes. Rawlins U.S. Crook, supra, expressly now declares S.Ct. L.Ed. we find: 1966. “ * * not the exclusion was any difficulty con- Nor find do ” * * prejudice. result race or class au- sidering binding White v. Crook statute, thority. The Federal 28 U.S.C. ground court saw a bona fide for the shows that review United good community regular that their States Court is available to interrupted. work should not be party. unsuccessful test, exemption Under this for women General, Here, Attorney the State’s age who hаve school children invalid or officer, fit let constitutional law saw members seem of their household would White Crook become final. See that, Beyond give reasonable. rise reasons Jones, ex rel. 252 Ala. Carmichael v. exceptions possibility for dis- action, res It is a class So.2d criminations. adjudicata, County’s as to offi- Lowndes eligibility posed cers. Often we are with the (if today the mother a full who has retinue Constitutionally be Exemption can What such) there of household servants. Her on and not Cоnferred Women Jurors taking umbrage statutory in a exclusion Men? deprive in- might court of a trained telligent mind. outset, crystal it clear At I think women, exemptions whether broad *9 Conversely, her women to draft and other extremely legislative, or administrative might so trials silk stock- situated load with equal com- protection dubious to and of ing venires. Constitution, plying the with Alabama § which, indictments, Accordingly, judges for I think the circuit in trials of calls county given power be women impartial jury or district should the to excuse of the jurors judiciаl discretion. committed. their sound which the offense was capital “standing” in race ex- rule of evolved may not be feasible in all the This cases, thought I a of with- clusion for time cases. my original opinion. find one- drawing To arrangement the could not cause This solitary particularly disagreement, self jury system of to be strick- entire the State relatively forest, a an ex- unblazed at fell en down one blow. requires perience reappraisal. Conclusion decisive, Moreover, were numbers sheer my two seven colleagues, the views of the Hence, to the exclusion of women Supreme Court, justices also of jurors, I consider Rives, Judges Allgood, would Johnson 30, 20, 1) Code T. and allied sec- away. require my me to fold tent and steal juries restricting only tions to men vio- that each and thought Thomas Equal late Protection Clause Jefferson a every appellate judge give to should have Fourteenth Amendment of the Consti- separate opinion. Warren, Supreme States; of the United tution II, History, Court United States Vol. appellant’s 2) The motion to continue This useful 113. he would be conceived procedure person proper by proper a reasoning legislature for review the protection Equal Pro- within judges as well state of as the Clause; tection law. appellant’s post- 3) The retrial should be appellate An intermediate whether court poned until either: ostensibly or into be- final not can drift validating (a) coming agent’s rolls been refilled a mere' have ticket aрpropriate quali- stamp journey with an a number of for from convict’s persons county jail regard prison. fied without to sex and to the Much state given a venire drawn therefrom is summoned of our work to be sometimes seems try Philpot’s indictment; only cursory supe- or either consideration inferior settle rior or courts. We seldom knowingly (b) intelligently except parties con- for the of instant law withdraws his for continuance. motion Brill, Corp. cern. S. Waterman S. Attorney Indeed, Ala. 9 So.2d one precedent, As а I would consider this reputed to memory of lamented General only as to ob- retroactive those who have ordered, apply- rigueur, de the State’s have jected jury. trial before selection of a ing every certiorari reversal question quashal indict- Since no conviction. criminal arose, forego ment would discussion thereof. upper and the same oath as Yet we take only props suspect today its I rather tolerate judges. temptation nether worship, pride аnd female are ancestor male open opinion jurisprudence is an a one-man indifference. enter corrupting thieves to invitation for law. house of the the treasure came Fourteenth Amendment
After the up in further showed being, a defect into by cacoethes being afflicted I disclaim one-sidedness the structure. re- I am Rather, I believe dissentiendi. my views express by my oath to quired to continue I think motion Because Conformity repressed contributes candidly. taken, well venire-women was for want of men sterility. Reasonable intellectual judgment below. I vote to reverse a rational differ: should and women conclu- better reach dialogue others passed our After question veil of sions. jurors behind women
336 sophistry.
Here we have no rule of right settled law. The to have women on have a an juries statute enacted environ- We in is not based on right men of ment of an era in which women were con- to and have men women to have women signed to “Kinder, judgment. the care of Kuechе und to sit in The is not Kirche.” corps, corps elite a humanity’s nor of lowest common denominator. Legislature currently our seeking
With
to
application
Crook,
find the
v.
D.
of White
Returning
Plolman, supra,.
to Blauvelt v.
F.Supp. 401,
C., 251
and
divergent views
reading
think a
opinion
of the entire
uniformity
not formal
should
a desider-
shows
rejection
reason for
public
atum in the
forum.
quoted
Blauvelt’s claim
Supreme
response
Court’s
actually
was
as.
intended
my
I cannot sit on
hands and let the
but an illustration of the frivolity
Blau-
quotation,
infra,
Supreme
in the
Court’s
petition.
velt’s
response stand
Hol-
alone.
Blauvelt v.
man, D.C.,
F.Supp. 385, Johnson, J.,
237
Thus,
in addition to the extract used
by
corpus
reviewed
habeas
detention
by
Court,
our
opinion
the Blauvelt
prisoner.
State,
a State
Blauvelt v.
276
following:
contains the
671,
Ala.
166
nobis).
So.2d 399
coram
(on
“As to the contention that Blauvelt now
616,
Ellis, D.C.,
F.Supp.
Hollis v.
201
presents
systematic
which relates to the
cited
a
there
was
case where no state court
Negro
of members
race
exclusion
Henslee,
appeal was
Bailey
taken.
v.
juries
County prior
from
to-
of Sumter
Cir.,
744,
Negro
264 F.2d
de-
involved a
proceedings
and at the time of the
fendant who later had his conviction set
incarceration,
945,
present
408,
See
resulted
his
aside.
4 L.
case,,
presented
record,
now
in this
Ed.2d 364 and
337 any petitioner deprived of his allay sup- was not of cedures of firm tradition to any rights by posed reason mischief. constitutional present proceeding which resulted in his finality As to the Su- .Alabama the fore- incаrceration. In addition to preme Court’s view of the Federal consti- reasons, this case going the record in problem presented, tutional I here have Blauvelt, through his coun- reflects that my heretofore taken a different view objections sel, intelligently any waived colleagues 1940, 13, 98, ap- Code T. jury that have had to the plied questions. wrong, to Federal If I am resulting in proceeding used in prefer my I consistent in to be error. See Floyd present incarceration. 586, Ala.App. 578, 42 at Knox Statеs, Cir., F.2d United 787, at So.2d States, U.S.App. Mitchell v. United F.2d a matter of D.C. 787. As I Pragmatically, realize this court is but fact, affirmatively record this case way a adjudication. the line of station particular shows that which My that it concern is should not narcotize de- heard his case was desired siding. itself stagnant so as to become a fendant the defendant’s counsel. J., Ethridge, dissenting See C. in State v. connection, Georgia, this see Williams v. Hall, Miss., 187 So.2d at 870. 99 L.Ed. S.Ct. Foster, dissenting Mr. in Water- Justice ** *” Corp. Brill, man S. S. 243 Ala. at ques- at 9 So.2d said of Federal Croоk, supra, As White v. submit tions : Rives, al., Judges et search seem palatable popularity a modicum of for question legislative “This inter- is Judiciary, produced, pretation opinion the Federal to have by a court whose postponed prospectivity, with the con- only not and is conclusive effective un- go ceptual monstrosity simul- which tries to til Court of the United taneously both speak. North and province South. It States shall our Johnson Jersey, supra, clearly indicates interpretation v. New to mе to make the which think we appropriate that White v. Crook was not will accord with that of the court which application authority. case of the doctrine has final As we undertake prospective adjudication. task, only Either women there are two considera- juries should on our State guide now or tions to us. One is the trend of Legislature judicial lay opinion uncoerced should down in that court manifested jurisdiction, two, timetable. or ab- final sence of clear direction from that Thоugh I now be believe women should source, interpretation to make we juries, I should on our do think this think is with rules and consistent hanging like come from a Federal ukase principles usually applied ” Legisla- Sword Damocles over our ** legislative (Ital- construction. ture. added.) ics Reynolds dichotomy: proceeding diagnostic mode of classic This is the Sims, judge prophesy puisne U.S. L.Ed. or should shall the writing logic 2d has no in the on tablets of realm he seek the revealed pro- judicial selection. There are ? other stone