31 S.E.2d 858 | N.C. | 1944
DEVIN, J., dissenting.
SEAWELL, J., dissenting. Criminal prosecution tried upon indictment charging the defendants and another, in six counts, with violations of the prohibition laws.
Upon the trial, after the regular panel of jurors and most of the male bystanders had been exhausted, the sheriff called from among the bystanders two women of good moral character, freeholders and residents of the county, and they were accepted by the solicitor as satisfactory jurors. The defendants moved the court to excuse both women from jury service for the reason that they were not qualified, because of their sex, to serve as petit jurors. Overruled; exceptions. Peremptory challenges were still available to the defendants, but were not used to stand the women aside, as the defendants did not wish unnecessarily to exhaust their challenges. Practically all remaining bystanders, not previously called, were women.
There was a general verdict of guilty as to each of the defendants, which they moved to set aside principally upon the ground of jury defect. Overruled; exceptions.
From the judgments pronounced, the defendants appeal, assigning errors. *583 The questions here posed are (1) whether a jury of ten men and two women suffices as a jury of "good and lawful men" within the meaning of Art. I, sec. 13, of the Constitution; and (2) whether trial by such jury complies with "the law of the land" and accords with "the ancient mode of trial by jury" vouchsafed in Art. I, secs. 17 and 19, of the Constitution. While these are questions of first impression, the construction heretofore placed on the subject sections of the Constitution would seem to point to negative answers.
The pertinent clauses follow:
"No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court." Declaration of Rights, Art. I, sec. 13.
"No person ought to be . . . deprived of his . . . liberty or property, but by the law of the land." Declaration of Rights, Art. I, sec. 17.
"In all controversies at law respecting property, the ancient mode of trial by jury . . . ought to remain sacred and inviolable." Declaration of Rights, Art. I, sec. 19.
The will of the people as expressed in the Constitution is the supreme law of the land. Warrenton v. Warren County,
In numerous decisions, it has been said that the word "jury," as here used, is to be given the signification which it had when the Constitution was adopted, i.e., a body of twelve men in a court of justice duly selected and impaneled in the case to be tried. S. v. Rogers,
From ancient times or from the earliest period in the history of the common law, grand and petit juries have consisted exclusively of men. 3 Bl. Com., 352. Women were excluded propter defectum sexus. 3 Bl. Com., 362; 4 Id., 395. Blackstone says: "Under the word `homo,' also, though a name common to both sexes, the female is, however, excluded propter defectumsexus (because not of the male sex)," except in cases of writs de ventreinspiciendo. 3 Blk. Com., 362, 35 C. J., 245; People v. Lensen,
At common law a person under 21 years of age was not competent to serve as a juror, and so we have held that the presence of a minor on a grand jury renders its returns quashable, and this without any statute by our Assembly prescribing the age for jurors. S. v. Griffice,
It follows, therefore, that until the common-law disqualification of sex is removed from our law, women are not required to assume the obligation of jury service. They were ineligible for such service at the time of the adoption of the Constitution in 1868, and the same law which then obtained still subsists. 31 Am. Jur., 594.
"It is elementary that a jury, as understood at common law and as used in our Constitutions, Federal and State, signifies twelve men duly impaneled in the case to be tried." S. v. Rogers, supra; Traction Co. v.Hof,
It is a cardinal principle, in the interpretation of constitutions, that they should receive a consistent and uniform construction, so as not to be given one meaning at one time and another meaning at another time, even though circumstances may have so changed as to render a different construction desirable. The will of the people as expressed in the organic law is subject to change only in the manner prescribed by them. S. v.Knight,
In support of a different view, it is suggested that by statute, even prior to the adoption of the Constitution, the original jury list was to be selected from the names of all such "persons" as have paid the taxes assessed against them for the preceding year and are of good moral character and of sufficient intelligence. G.S.,
Without conceding the present pertinency of these statutory provisions, it would seem that the contextual use of the words "good and lawful men" and "the ancient mode of trial by jury" in the above sections of the Constitution clearly shows a contrary intent. Re Opinion of Justices,
To say that the law-making body in 1855, thirteen years prior to the adoption of the Constitution, intended to impose, and did impose, upon women the obligation of jury duty, which the framers of the Constitution must have had in mind, and which we are just now finding out — 89 years later — may reveal some ingenuity or enterprise, but the idea could hardly be expected to prevail. In addition to the lateness of the discovery, which alone invites scrutiny, it seems to involve a novel use of the rules of construction.
Every statute is to be considered in the light of the Constitution and with a view to its intent. Belk Bros. Co. v. Maxwell,
The pertinent considerations were before the Court in S. v. Mitchell,
It is contended, however, that since 1868 the public policy of the State has undergone a change in respect of the rights of women, which should carry with it an elimination of the disqualification for jury servicepropter defectum sexus. Patton v. United States, supra. The position is that women are now politically the peers of men, and hence they should be permitted to serve on juries. S. v. Chase,
The General Assembly is at liberty to impose the burden of jury service on some and relieve others of the obligation, provided the classification is not in derogation of the 14th Amendment to the Constitution of the United States or of our own Constitution. Norris v. Alabama,
Moreover, the suggested interpretation of the statute, if constitutionally permissible, would require the commissioners of the several counties as well as the Federal authorities to place the names of all women, otherwise qualified, upon the jury list for jury service, both State and Federal. See United States v. Roemig,
It is also suggested that the 19th Amendment to the Constitution of the United States, adopted in 1920, may have some bearing upon the question. The effect of this amendment was to eliminate any discrimination in the right of citizens to vote on account of sex. Consequently, the franchise has been extended to both sexes equally in this State. Ch. 18, P. L. Ex. Ses. 1920. With us, however, liability to jury duty is not an incident to the right of suffrage, as in some of the States. S. v. Walker, supra;People v. Barltz,
Our attention has been called to the many cognate decisions in other states. They reflect a variety of views, depending in each case on the Constitution and laws of the state. "In some states jury duty on the part of women is made compulsory, in others it is optional, and in others women are expressly made ineligible." 35 C. J., 245. We have found no case, however, in a state with constitutional and statutory provisions similar to ours, where a contrary conclusion has been reached. As pointed out in some of the cases, if the law has been changed, the time and manner of its change ought to be discoverable. We have been unable to find any modification of the common law, here prevailing, as it pertains to the specific matter under review. hence, it is to be regarded as in full force and effect. G.S.,
As a dernier resort, the point is made that a contrary legislative intent may be extracted from ch. 30, Public Laws 1921. This act deals only with titles or designations, and not with the qualifications for the offices and positions mentioned therein. To declare, as the statute does, that the words "governor," "senator," "solicitor," "elector," "executor," "administrator," "collector," "juror," "auditor," and others of like character, "shall when applied to the holder of such office, or occupant of such position, be words of common gender and that they shall be a sufficient designation of the person holding such office or position, whether the holder be a man or woman," is not to say that male and female alike shall be eligible to hold such office or position with no regard to the prescribed qualifications therefor. To impute such a purpose to the act would result in eliminating all qualifications for such offices or positions, save that of "man" or "woman." The proposed construction imports a meaning which the statute does not disclose.
Whether we consider the law outmoded, regard it archaic, or think it should be changed, is neither controlling nor important in its determination. It is ours to declare the law as we find it, and no more. "It is ours to construe the laws and not to make them" — Hoke, J., inS. v. Barksdale,
Mr. McIntosh, in his valuable work on North Carolina Practice and Procedure, states the whole case in a single sentence: "Women are not recognized in this State as subject to, or entitled to, serve on juries, and whether they could be so recognized by statute without a change in the Constitution has not been decided." N.C. Practice and Procedure, 592.
The question is not whether women are competent to serve on juries, but whether they are presently eligible to do so. They may be ever so competent, and yet not eligible. Eligibility is prescribed by law. Competency is another matter. The right to vote, or to hold office, is not the test of jury qualification. The judge on the bench may not be eligible to serve as a juror, and generally he is not. It is no impeachment of citizenship to be disqualified for jury service, or to fall outside the class designated for such service.
In considering the broader implications of the case, it may be well to remember that the defendants are on trial, and not the women of the State. Our concern is with the right of the defendants to be tried by a jury of "good and lawful men" as the law provides. This is the crux of the matter. In Hinton v. Hinton, supra, Brogden, J., delivering the opinion of the Court, observed: "It is clear, therefore, that the law not only guarantees the right of trial by jury, but also the right of trial by a proper jury; that is to say, a jury possessing the qualifications contemplated by law." And in S. v. Griffice, supra, Bynum, J., speaking to an indictment by an exceptionable grand jury, put it this way: "The defendant must have the right to have the accusation against him performed by men unexceptionable in respect of qualification."
Finally, the view is advanced that the exceptions should be overruled as harmless since the defendants failed to use all of their peremptory challenges. S. v. Dixon,
Venire de novo. *590