In Re Mana

[214]

WILBUR, J.

Petitioner, convicted of a felony by-a jury consisting in part of women, seeks release from custody on the ground that the act of the legislature authorizing women to sit as jurors is unconstitutional. The right to a trial by a jury is provided for in article I, section 7, of the constitution adopted by the people of the state of California in May, 1879, as follows :

“Sec. 7. The right of trial by jury shall be secured to all, and remain inviolate; but in civil actions three-fourths of the jury may render a verdict. A trial by jury may be waived in all criminal cases not amounting to felony, by the consent of both parties, expressed in open court, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions and cases of misdemeanor, the jury may consist of twelve, or of any number less than twelve upon which the parties may agree in open court.”

The petitioner claims that the word “men” should be inserted by proper construction in the constitution, so that the constitution would in effect read: “The right of trial by a jury of twelve men shall be secured to all,” etc. This contention is based upon the proposition that when the constitution provides for a trial by a jury it, by necessary inference, provides for the jury as known at the common law

(People

v.

Powell,

87 Cal. 348, [11 L. R. A. 75, 25 Pac. 481]), and that as juries of men were provided for by the common law, the constitution must be thus construed. Two questions seem to be thoroughly settled by the unbroken line of decisions in all the states: First, that constitutional provisions guaranteeing the right to a trial by jury establish the right to a trial by a jury as known at common law; second, that the qualifications of the jury is a matter subject to legislative control, and that even though such qualifications may differ from those at common law, such legislation is nevertheless a valid exercise of legislative power. (24 Cyc. 187;

People

v.