questioning the diverse governmental sources from which state and national courts drew their authority, recognized the unity of the governments, national and state, and the common fealty of all courts, both state and national, to both state and national constitutions, and the duty resting upon them, when it was within he scope of their authority, to protect and enforce rights lawfully created, without reference to the particular government from whose exercise of lawful power the right arose.

Affirmed.'

IN BANC.

STATE v. CHASE.

SUPREME COURT, OREGON. 1923.

106 Oregon 263.

The defendant was indicted for the crime of rape alleged to have been committed by having unlawful sexual intercourse with one Lydia Craig, a female of the age of nine years.

On the trial a number of exceptions were taken, the assignments of error in the brief being as follows: Assignment I questions the validity of Section 10 of Chapter 273, Laws of 1921, purporting to amend Section 1520, Or. L., and reading as follows:

"In criminal actions, the trial jury shall consist of twelve persons, unless the parties consent to a less number, and in all cases in which a minor under the age of eighteen years is involved, either as defendant or as complaining witness, at least one half the jury shall be women, and the trial jury is formed in the manner prescribed in

1 The provision of Amendment VI of the federal Constitution as to trial by jury in criminal cases requires a jury consisting of twelve persons and a unanimous verdict. See Thompson v. Utah, 170 U. S. 343, 349-350 (1898); Patton v. United States, 281 U. S. 276, 288-290 (1930). Similarly, "trial by jury" in the usual state constitutional provisions means trial by a jury of twelve. See Opinion of the Justices, 41 N. H. 550 (1860). In some states, however, the constitutions provide for juries of less than twelve members in certain classes of cases. See Walker v. Sauvinet, 92 U. S. 90 (1875). See also Chesapeake & Ohio Ry. Co. v. Carnahan, 241 U. S. 241 (1916), holding that there is no objection under the federal Constitution to the trial of a case under the federal Employers' Liability Act by a jury of seven members in accordance with state law. And see Maxwell v. Dow, 176 U. S. 581 (1900) (criminal trial by jury of eight).

In a number of states the constitutions, while requiring a jury of twelve members, provide for verdicts by less than the whole number of jurors in civil cases and sometimes in criminal cases. See, e.g., N. Y. Const. Art. I, § 2, as afmended in 1935, p. 302, supra. See also Bouchelle, "Requirement of Consent of Three-fourths of Jury to Verdicts in Civil Actions, Abolishing Law of Unanimous Consent," 48 W. Va. L. Q. 149 (1942), listing the various states. Could a state abolish trial by jury in civil cases by amending its constitution? Cf. Iowa Central Ry. Co. v. Iowa, 160 U. S. 389, 394 (1896). Could it do so in criminal cases? See Frank v. Mangum, 237 U. S. 309, 340 (1915); Palko v. Connecticut, 302 U. S. 319, 324 (1937).

chapter II of title II of the Code of Civil Procedure except as otherwise expressly provided in this chapter" 1

The defendant was convicted and appeals.

MCBRIDE, J. In 1921 it was deemed expedient so to amend the laws providing for the selection of jurors that women otherwise qualified should be eligible to jury duty. The principal change made by Chapter 273, Laws of 1921, consisted in striking out those words or phrases which limited the persons eligible to jury duty to men, inserting in place of the word "men" or "male persons" the word "persons", and providing the terms upon which women summoned as jurors could obtain exemption. In addition to these amendments, no material change was made with the exception of that contained in Section 10, quoted in the statement.

Before proceeding further with the decision, it is proper here to state exactly what was done in this case. The drawing of the jury proceeded regularly until six men and five women had been drawn one by one, when the clerk drew from the jury-box the name of W. L. Wheeler, a male juror. Whereupon the state objected to the drawing of any more men on account of the provisions of Section 10 of Chapter 273, supra. The objection was overruled temporarily and Wheeler was examined and took his place in the jury-box. Another woman juror was drawn but was excused for cause and thereupon and before any more men jurors were called, the court reconsidered its ruling in respect to Wheeler and excused him from service, to which ruling defendant excepted. Thereupon the clerk drew one by one from the box the names of several male jurors and by order of the court laid the same aside and continued to draw names from the box until the name of a woman juror was drawn, to all of which defendant excepted. The clerk announced that the names of all women jurors were exhausted, whereupon the court directed the sheriff in the presence of the court and counsel to draw from the regular jury list the names of ten women jurors to appear on March 13, 1922, at 9 o'clock A.M., to which procedure defendant objected on the ground that there yet remained in the box the names of male jurors.

When the court convened on March 13th it announced in answer to a question by defendant's counsel that it would adhere to its ruling rejecting the names of male jurors, saying, "In any event this jury will be composed of at least six women. If counsel exercises all six challenges the court will draw from the regular jury list until at least six women are drawn on the jury." Counsel for defendant then stated that in view of this ruling the defense would waive any further challenges. The jury as selected was composed of six men and six women.

1 So much of the statement of facts as relates to the other assignments of error is omitted.

1. We fail to see anything improper or irregular in the ruling of the court. Section 10 of Chapter 273, Laws of 1921, is imperative that "in all cases in which a minor under the age of eighteen years is involved, either as defendant or as complaining witness, at least one half of the jury shall be women." The result in this particular instance was that when the quota of six men had been taken and accepted, the remaining men on the panel were disqualified by the terms of the statute from serving on that particular jury. It was not an exemption, but a disqualification, one such as neither the state nor the defendant could waive, because it existed in favor of the infant witness.

2. In the case at bar it appears that the provisions of Section 116, Or. L.,1 were substantially complied with. The state had challenged all male jurors on the ground of disqualification under the particular circumstances, and there was no necessity of repeating the challenge over again every time another name was called. In effect the statute challenged them, and unless the section in question is in violation of our Constitution, we can see no objection to the method pursued. The Constitution guarantees to a defendant the right of trial by an impartial jury, leaving the legislature to provide the method of securing such a jury. So long as it is a jury of his peers, that is, of qualified citizens impartial between the state and himself, the defendant has no right to complain because a particular class of persons is included or excluded. The law exempts from jury duty several classes of people: ministers, school-teachers, attorneys, civil officers, firemen, and many others, and excuses from such service jurors who have served for a period of four weeks or who for family reasons are unable to attend. Many of those in the exempt class would make ideal jurors, but reasons of public policy and convenience justify their exemption. The reason for requiring cases of the character of the present to be tried before a jury composed partly of women rests upon the highest considerations of public policy and humanity. Anyone who has occupied the circuit bench and seen a poor, frightened girl, a stranger to a courtroom, forced to detail the facts in regard to her injury or shame to a jury composed of strange men, has felt that the presence of a few of the mothers of children in the jury-box would be more in accordance with humanity and justice. The intention of the legislature in enacting Section 10, supra, is plain, and even if to give it effect one should hold that it works an implied amendment of Section 116, we should so hold rather than declare the law void for uncertainty.2

.

3

1 This section prescribed the manner in which trial juries should be drawn. 2 Compare the common-law right of an alien to a jury de medietate linguae, composed half of aliens, now generally abolished by statute. See United States v. Wood, 299 U. S. 123, 145 (1936); Thompson and Merriam, Juries (1882) § § 16-17.

3 Further discussion of the manner of drawing the jury is omitted.

3. The claim that the statute is in violation of the Constitution is not predicated upon the argument that it is unconstitutional to permit women to sit upon juries, a practice not now unusual in several of the states, but it is claimed that by allowing women summoned to serve upon the panel to decline such service, making it thereby optional with the person served to attend or not, the enactment of 1921 destroys the compulsory nature of jury duty and in some way not clearly explained by counsel deprives a party of a fair and impartial jury. While in the opinion of the writer it would have been better policy if the statute had specified the grounds upon which a woman could be excused from jury duty, such as necessity of caring for her family or the like, we think there is no invasion of the constitutional rights of a defendant in permitting the service upon a jury by women to be largely voluntary. The right of a defendant is to have a fair and impartial jury, and if the statute gives him this, he has no reason to complain if it permits women to excuse themselves from service. From their physical constitution as well as from the nature of their duties and occupations, women have many reasons for not wishing to serve or being required to serve upon juries, which do not apply to male jurors, and some of these are such as a delicate woman would hesitate to specify in court or even to a judge.

4. The not infrequent remark that by using the words "trial by jury" is meant a common-law jury, is inaccurate, to say the least. It is safe to say that in a majority of the states one or more of the qualifications of a common-law juror are ignored by the statutes. The Constitution of Massachusetts is substantially the same as our own in regard to trial by jury, and the remark of the court in Commonwealth v. Dorsey, 103 Mass. 412, 418, may be properly applied to the instant case:

"The particular provision of the constitution applicable to the case is the last clause of art. 12 of the Declaration of Rights, ‘And the legislature shall not make any law that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury.' The jury referred to in this provision is what has been known as a petit jury, which consisted, by the common law, of 'twelve good and impartial men of the neighborhood.' Bac. Ab. Juries. Undoubtedly the constitution contemplated a jury of twelve men, who should be good. and impartial. The neighborhood, in this Commonwealth, has always included the county. But it is not contemplated that they shall know the parties and the case beforehand, so as to try cases on their personal knowledge, as they formerly did. Schmidt v. New York Union Insurance Co., 1 Gray (Mass.), 529, 535. On the contrary, they are to try causes on evidence produced before them, and should know so little of the case as not to have formed or expressed any opinion in regard to its

1 See Matter of Mana, 178 Cal. 213 (1918).

merits, and should be free from bias or prejudice. But the method of selecting jurors is left by the constitution to be regulated by legislative enactments; and these may be modified from time to time as the legislature shall think proper."

The common-sense view of the whole matter is that the intention of the framers of the Constitution was to insure to a defendant the right guaranteed by Magna Charta, namely, a trial by an impartial jury of his peers, leaving details, as to competency and method of selection to the legislature. Women are now the peers of men politically and there is no reason to question their eligibility upon constitutional grounds.

5. The fact that a common-law jury was defined to be a "jury of twelve men," etc., had its origin in the circumstance of the political servitude of women in the early days of juridical history so that they were not the "peers" of a man accused of crime. In the broad sense of the word they are now "freemen" and neither the Constitution nor the laws when they use the term "men", except in rare instances, use it with reference to sex. Thus in Section 1 of the Bill of Rights, which declares that all "men" are equal in right, in Section 2 which provides that all "men" shall be "secured in their natural right to worship Almighty God," etc., and in Section 10, which declares that "every man shall have remedy by due course of law for injury done him in his person, property or reputation," nobody would contend that women are not included.

6. Neither is Section 10 of Chapter 273, supra, as applied by the court in this case discriminatory against men as a class. If it had so happened, as it might, that a majority of the panel had been women and when six women had been drawn and accepted the court had refused to allow more women to sit, it could not be said that the law discriminated against women. It is plain that under like conditions the law operates equally as to both sexes. We hold the section questioned constitutional and approve the court's construction of it. The various cases cited by counsel arising upon alleged violation of the fourteenth amendment to the Constitution of the United States have no application here. In those cases it was claimed that the legislatures of certain states had discriminated against persons of African descent by excluding them as a class from serving on juries, which the court held was a discrimination forbidden by the fourteenth amendment. But for that amendment the courts would no doubt have held such statutes valid.1 . . .

Affirmed. Rehearing Denied.2

1 The remainder of the opinion, relating to the other assignments of error,

is omitted.

2 See also 21 Ore. L. Rev. 298 (1942).