APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge.
Mr. Jacob Morgan, for Appellant.
Mr. Joe Conway, Attorney General, Mr. Thomas J. Croaff, Assistant Attorney General; Mr. James A. Walsh, County Attorney, and Mr. Edwin Beauchamp, Deputy County Attorney, for Appellee.
De Concini, Superior Judge. Stanford, C. J., and Morgan, J., concur.
De Concini, Superior Judge.
[62 Ariz. 341] This case is on appeal by the defendant Fred McDaniels, who was convicted in the lower court of the crime of assault with a deadly weapon, a felony, on one Andrew J. Botcher.
On the 4th day of March, 1944, the defendant and the complaining witness, Andrew J. Botcher, had been [62 Ariz. 342] drinking throughout the day in various bars in the City of Phoenix, Arizona. At approximately one o'clock a. m., on the 5th day of March, 1944, these two men were walking west on Washington Street and after having crossed the intersection of 2nd Street with the said Washington Street, an argument arose, at which time the defendant drew a paring knife from his pocket and stabbed and cut the complaining witness thereby puncturing his lung and liver and confined him to the hospital for several weeks.
The defendant brings this appeal and cites twelve assignments of error under eight, propositions of law. The court will discuss these propositions separately. Propositions Nos. 2 and 4 will be discussed under Proposition No. 2, making seven propositions of law all together.
The first three assignments of error are treated under the proposition that defendant was not accorded due process of law in his trial because no women were called on the jury panel and therefore he was denied the right to have women on his trial jury. Defendant claims that Section 6 of Article 6 was violated by legislation in limiting jury duty to men only because the Constitution says "a trial jury shall be drawn and summoned from the body of the county at least three times a year." Miller v. Wilson, 1942, 59 Ariz. 403, 129 P.2d 668, 670, holds that "if a constitutional provision grants a right which can be put into operation without further legislative action, the provision is self-executing." The question then arises, is this provision self-executing? It is not, because it was necessary for the legislature to provide the manner in which jurors would be drawn, their qualifications, those who are exempt, etc.
At the time of the adoption of the Constitution, woman were given the right to vote and hold office under Article 7, Section 2. They could not serve [62 Ariz. 343] on juries because Paragraph 2781 of the 1901 Code (Civil) limited jurors to male citizens of the United States. No mention of the right of women to sit on juries was made in the Constitution in the face of an already existing statute which prohibited them from so serving.
It is not unreasonable to conclude that neither the framers of the Constitution nor the people in adopting same meant to override an existing law directly in conflict
with the Constitution, if no mention of it were made.
Under the Constitution, Arizona was admitted to statehood in 1912. In 1913, the legislature re-enacted Paragraph 2781 of the 1901 Code, which is Section 37-102 of the 1939 Code, which limits jurors to male citizens. In Denison v. State, 1928, 34 Ariz. 144, 268 P. 617, this court stated "the qualifications of jurors in the state of Arizona are not prescribed by the Constitution, but are found in . . . R. S. A.," and inferentially approved same.
When the Constitution refers to a jury it refers to a jury as it was under the common law, and under that law a jury was no jury unless it was composed of men. 31 Am. Jur. 557. To put a different interpretation on the Constitution would amount to changing it in a manner not thought of by its originators. The fact that Section 43-103 of the 1939 Code provides "words used in the masculine gender include the feminine and neuter" is not sufficient to include women as jurors. "From the earliest period in the history of the common law, juries grand and petit, have been ...